Knapp v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, a Corporation

• Decision Date: 22 July 1916
• Citation: 159 N.W. 81,34 N.D. 466
• Court: North Dakota Supreme Court

159 N.W. 81

34 N.D. 466

D. C. KNAPP v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, a Corporation

Supreme Court of North Dakota

July 22, 1916

Appeal from the judgment of the District Court of Burke County Buttz, Special Judge. Defendant appeals.

Reversed.

Reversed and remanded.

Palda Aaker, & Greene (Alfred H. Bright and John L. Erdall, of counsel), for appellant.

"The duties and obligations of the common carrier with respect to the goods commence with their delivery to him; this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for loss. Hutchinson, Carr. 3d ed. § 105; Missouri P. R Co. v. McFadden, 154 U.S. 155, 38 L.Ed. 944, 14 S.Ct. 990; Gass v. New York, P. & B. R. Co. 99 Mass. 220, 96 Am. Dec. 742.

"Where several connecting carriers establish and publish joint or through rates, that fact alone will not be sufficient to impose upon them a joint liability or render one of them responsible for the acts or omissions of the others." 1 Hutchinson, Carr. §§ 262, 263; Peterson v. Chicago, R. I. & P. R. Co. 80 Iowa 92, 45 N.W. 573; Pennsylvania R. Co. v. Jones, 155 U.S. 333, 39 L.Ed. 176, 15 S.Ct. 136; Wehmann v. Minneapolis, St. P. & S. Ste. M. R. Co. 58 Minn. 22, 59 N.W. 546.

F. B. Lambert and Geo. A. Gilmore, for respondent.

"Whether an agent acted within the scope of his authority is a question of fact," and "agency and authority of agents are questions of fact." 1 Sutherland, Code Pl. Pr. & Forms, § 1127.

"Except as against the strict prohibitions of the Interstate Commerce Act, railroads may contract to do their business, or help such business, in the same manner and to the same extent as any other corporation." Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U.S. 184, 40 L.Ed. 935, 5 Inters. Com. Rep. 391, 16 S.Ct. 700; Interstate Commerce Commission v. Baltimore & O. R. Co. 145 U.S. 263, 36 L.Ed. 699, 4 Inters. Com. Rep. 92, 12 S.Ct. 844.

Such corporations, unless forbidden by their charters, have the power to contract for shipments the entire distance over any connecting lines. Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L.Ed. 827; Great Western R. Co. v. Blake, 7 Hurlst. & N. 987, 31 L. J. Exch. N. S. 346, 8 Jur. N. S. 1013, 10 Week. Rep. 388; Buxton v. Northeastern R. Co. L. R. 3 Q. B. 549, 9 Best. & S. 824, 37 L. J. Q. B. N. S. 258, 18 L. T. 795, 16 Week. Rep. 1124; Weed v. Saratoga & S. R. Co. 19 Wend. 534; Knight v. Portland, S. & P. R. Co. 56 Me. 234, 96 Am. Dec. 449; Ohio & M. R. Co. v. McCarthy, 96 U.S. 258, 264, 24 L.Ed. 693, 695; 1 Hutchinson, Carr. §§ 226, 228.

"An agent employed to solicit freight traffic has the implied authority to bind his principal for safe delivery at a point beyond his own line, and to contract over which road beyond such line the property shall be transported. Freemont, E. & M. Valley R. Co. v. New York, C. & St. L. R. Co. (Union State Bank v. Fremont, E. & M. Valley R. Co.) 66 Neb. 159, 59 L.R.A. 939, 92 N.W. 131.

"Where there was competent evidence before the jury that the railroad company undertook to carry property beyond its own line, and the jury have found such to be a fact, the other companies are deemed to be agents, for whose faults it is responsible. Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L.Ed. 827.

"The giving and issuing of a receipt or bill of lading for the property to be transported to a place beyond the terminus of the road of the common carrier are evidence of a contract of such common carrier to transport such property to the place of destination. This prima facie case of the statute makes for the plaintiff on the facts stated." McCann v. Eddy, 133 Mo. 59, 35 L.R.A. 110, 33 S.W. 71; Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481, 56 L.Ed. 516, 32 S.Ct. 205.

"A railroad company has power and the right to contract as a common carrier to transport freight through another state, over another railroad beyond its own line." Michigan C. R. Co. v. Mineral Springs Mfg. Co. 16 Wall. 318, 21 L.Ed. 297; Ohio & M. R. Co. v. McCarthy, 96 U.S. 259, 24 L.Ed. 693; Merchants' Dispatch Transp. Co. v. Bloch Bros. 86 Tenn. 392, 6 Am. St. Rep. 847, 6 S.W. 881.

Therefore, if a railroad or other transportation company can so contract, then, by analogy, it can contract and bind itself to be liable for damages on connecting railroads or lines, when such damages occur prior to its getting possession of the goods. Swift v. Pacific Mail S. S. Co. 106 N.Y. 206, 12 N.E. 583; Weed v. Saratoga & S. R. Co. 19 Wend. 534; Wylde v. Northern R. Co. 53 N.Y. 156, 5 Am. Neg. Cas. 189; Root v. Great Western R. Co. 45 N.Y. 524; Condict v. Grand Trunk R. Co. 54 N.Y. 500.

"A carrier which, by contract or by usage, solicits a compress company as its agent to receive cotton that is to be shipped over its road, and issues bills of lading therefor on presentation of the compress company's receipt, is in possession of the cotton when the bill of lading has been executed so as to be liable for the loss by fire." Deming v. Merchants' Cotton-Press & Storage Co. 90 Tenn. 306, 13 L.R.A. 518, 17 S.W. 89.

"A general western agent is held to have authority to bind the railroad company by special contract." Northern P. R. Co. v. American Trading Co. 195 U.S. 439, 49 L.Ed. 269, 25 S.Ct. 84; Thompson v. San Antonio & A. P. R. Co. 11 Tex. Civ. App. 145, 32 S.W. 427.

"A carrier may even contract to receive freight at a point not on its own line, so as to be liable for the negligence of the prior carrier." Noyes v. Rutland & B. R. Co. 27 Vt. 110.

CHRISTIANSON, J. BRUCE, J. (dissenting).

OPINION

CHRISTIANSON, J.

This is an action to recover damages for certain wheat which plaintiff asserts he delivered, and defendant as a common carrier received, for the purpose of transportation; and which wheat, plaintiff asserts, was lost by reason of the negligence of the defendant and its employees, while in the possession and under the control of the defendant. The case was tried to a jury; a verdict was returned in favor of the plaintiff, and defendant has appealed from the judgment entered upon the verdict.

The principal question presented on this appeal is whether plaintiff's cause of action was established. This question in turn involves a consideration of the issues raised by the pleadings and the admissibility of evidence thereunder.

Plaintiff's complaint alleges:

"1. That the defendant, at all of the times hereinafter mentioned, was, and since said dates has been and now is, a foreign corporation organized and existing under and by virtue of the laws of the state of Minnesota, and engaged in the owning, operating, and running of a line of railway from the city of Minneapolis, Minnesota, to Portal, North Dakota as well as a line of boats on Des Lacs lake, a small inland waterway, extending from Kenmare, North Dakota, a small distance into the Province of Saskatchewan, Canada, and as such railway corporation engaged as a transportation company and inland common carrier of freight and passengers.

"2. That between the 25th day of September, 1910, and the first day of November of the same year, the defendant received from the plaintiff twelve (12) carloads of bulk wheat for transportation, eight (8) carloads of which were to be transported from points in North Dakota, to points in another state, and four (4) carloads of which were to be transported from Boscurvis, Saskatchewan, Canada, in through North Dakota, to points in other states; that for each of said shipments the defendant issued, signed, and delivered to the plaintiff a bill of lading; that plaintiff was and is the owner and consignor of all of such grain; that during its transportation the plaintiff did not accompany such grain or shipments, nor did he retain, or attempt to retain, or exercise any control over it whatsoever, but from the time of the shipments of such grain from the different shipping points the defendant, its agents, and servants had full and exclusive control thereof.

"3. That at Kenmare, North Dakota, between the dates hereinbefore mentioned, while such grain was being transported according to the contract between plaintiff and defendant, and while it was in the possession and under the exclusive control of the defendant, its servants, employees, and agents, it became necessary, in order to complete such transportation according to contract, that such bulk wheat be transferred from boats on Des Lacs lake to cars on defendant's track at Kenmare, North Dakota; that in making such transfer the defendant, its agents, employees, and servants carelessly and negligently, through the employment and use of improperly constructed and out-of-repair machinery and devices for unloading grain, and through their negligence and lack of care in operating the same, the said defendant, its agents, servants, and employees, allowed and caused one thousand (1,000) bushels of wheat in bulk, of the value then and there of ninety-four (94) cents per bushel, or nine hundred and forty dollars ($ 940) in all, to be deposited and dumped in Des Lacs lake, where it became embedded in the mud and covered by the water of said lake, thereby losing and totally destroying the same and the whole thereof, to the plaintiff's damage in the sum of nine hundred and forty ($ 940) dollars.

"4. That no part of the said one thousand bushels (1,000) of bulk wheat delivered by plaintiff to defendant for transportation as hereinbefore alleged and dumped in said lake has ever been delivered by defendant to the consignees of said grain, nor has...