Lincoln Drug Co. v. Harman

• Decision Date: 13 July 1945
• Docket Number: 31955.
• Citation: 19 N.W.2d 566,146 Neb. 354
• Parties: LINCOLN DRUG CO. v. HARMAN et al.
• Court: Nebraska Supreme Court

19 N.W.2d 566

146 Neb. 354

LINCOLN DRUG CO. v. HARMAN et al.

No. 31955.

Supreme Court of Nebraska

July 13, 1945

Syllabus by the Court.

1. The liability of a contract carrier for loss or damage to property being transported is determined by the contract made by the parties.

2. In the absence of a contract provision on the subject a contract carrier is liable only for damage or loss occasioned by his negligence.

3. When a contract carrier agrees to haul merchandise as directed by the consignee, the fact that the initial haul is made by his agent who is a common carrier does not increase the liability of the contract carrier for loss or damage not occasioned by his negligence, even though a through bill of lading was issued by the initial carrier.

Perry VanPelt & Marti and Arthur E. Perry, all of Lincoln, for appellant.

Beghtol Foe & Rankin and John C. Mason, all of Lincoln, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an action to recover $1,386.78 from Earl N. Harman, James A Donaldson and Georgia Donaldson for the value of merchandise alleged to have been lost in the process of delivering it from the Eastman Kodak Company's Warehouse in Chicago, Illinois, to the Lincoln Drug Company in Lincoln, Nebraska. The trial court found that negligence was not established, dismissed the action as to the Donaldsons and entered judgment against Harman for the amount claimed on the theory that he was a common carrier. From this judgment defendant Harman appeals.

The record shows that on August 1, 1937, the Lincoln Drug Company entered into a written contract with Harman whereby it was agreed that the company would employ Harman to haul merchandise for it as directed and at the rates therein specified. On July 15, 1942, the Lincoln Drug Company ordered certain merchandise from the salesman of the Eastman Kodak Company upon which signed order the Lincoln Drug Company specified that it should be shipped via Chicago Transfer Company in care of Harman Transfer Line. On July 20, 1942, the merchandise was delivered to the Chicago Transfer Company and by them deposited at a loading dock in Chicago, where Harman had arranged for space. During the night the dock was broken into and the property in question taken therefrom by persons who have never been apprehended.

At the time the merchandise was delivered to the Chicago Transfer Company by the Eastman Kodak Company, a uniform straight bill of lading was made out to 'Chgo Trans. C/O Harman Trans' which was signed 'Harman Transfer' by 'Lankin,' Lankin being a truck driver for the Chicago Transfer Company. The bill of lading provided in part: 'The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided.' It is admitted that the Chicago Transfer Company is a common carrier and that the Harman Transfer Line was a contract carrier. Neither is it disputed that the liability of a contract carrier is for negligence only and that the liability of such a carrier could be increased by contract provision. Nor is it anywhere questioned that the liability of a common carrier is in effect that of an insurer against loss from whatever cause except an act of God, the public enemy or of the owner of the goods.

There is much evidence in the record concerning the sale of the Harman Transfer Line, including its equipment and contracts for hauling, to the Donaldsons. Whether the Donaldsons were the sole owners of the Harman Transfer Line or merely the agents of Harman is not material under our view of the case on this appeal and for that reason we will not discuss the evidence going to that point.

We are of the opinion that Harman's liability must be determined by the contract he made with the Lincoln Drug Company. It will be noted that under that contract he agreed to haul for the Lincoln Drug Company as directed. The Lincoln Drug Company in ordering the merchandise in question, specified that it should be delivered to the Chicago Transfer Company. This was done. The Chicago Transfer Company placed it in the loading dock where Harman was to pick it up and transport it to Lincoln. This is not a case where a common carrier received merchandise and undertook for itself to perform an entire service of transportation from point of origin to destination. The Lincoln Drug Company, under its contract with Harman and the shipping instructions given the Eastman Kodak Company, contemplated no...