Mo. Pac. R. Co. v. Twiss

• Decision Date: 28 September 1892
• Citation: 53 N.W. 76,35 Neb. 267
• Parties: MISSOURI PAC. R. CO. v. TWISS ET AL.
• Court: Nebraska Supreme Court

35 Neb. 267

53 N.W. 76

MISSOURI PAC. R. CO.

v.TWISS ET AL.

Supreme Court of Nebraska.

Sept. 28, 1892.

Syllabus by the Court.

1. Where several common carriers unite to form a line for the transportation of merchandise, and receive goods and give a through bill of lading, each carrier becomes the agent of the others to carry into effect the transportation and delivery of the property.

2. The testimony tends to show that the property in question (a piano) was injured through the negligence of the defendants, and no one else; that they had attempted to settle the damages caused thereby both before and after suit was brought; that they were witnesses in two trials to recover such damages, and must have known that they were ultimately responsible for the same.

3. In such case, knowledge of the pendency of the suit and its object, and that if a recovery was had it would be for the default of the defendants and no one else, is sufficient to impose upon the defendants the duty of making any defense they may have to the action, and, in case they fail to do so, the judgment will be conclusive against them as to the amount of the judgment.

4. The measure of damages is the amount of the judgment, interest thereon, and taxable costs.

Error to district court, Cass county; CHAPMAN, Judge.

Action by the Missouri Pacific Railway Company against Edwin Twiss and Harvey Brown, formerly partners doing business under the firm name of the Louisville Transfer Company, for failure to transport goods carefully. A verdict was returned in favor of plaintiff for $106.75. A motion by plaintiff for a new trial was overruled, and it brings error. Reversed.B. P. Waggener and A. N. Sullivan, for plaintiff in error.

Beeson & Root, for defendants in error.

MAXWELL, C. J.

It is alleged in the petition, in substance, that during the month of October, 1886, the defendants were common carriers of goods and merchandise from the plaintiff's depot in Louisville, Neb., to the depot of the Chicago, Burlington & Quincy Railroad, in said village, about the distance of one mile; that, on the 11th day of that month, one J. P. Young shipped a piano from Weeping Water, on the line of plaintiff's railroad, to be carried to Louisville, and there delivered to the Chicago, Burlington & Quincy Railroad, to be transported on the latter road to Plattsmouth; that the defendants received freight in less than carload lots from the plaintiff at its depot in Louisville, to be by them carried to and delivered to the Chicago, Burlington & Quincy Railroad at its depot there; that they were in fact an intermediate transportation company; that the plaintiff fully performed all the conditions of said contract on its part, and delivered said piano in good condition to the defendants at Louisville, to be transported by them to the depot of the Chicago, Burlington & Quincy Railroad at that place, to be forwarded to Plattsmouth; that the defendants so negligently performed their duty in transferring said piano as to permit the same to fall out of the vehicle on which it was being carried, and it was thereby broken and damaged; that said Young thereupon brought suit against the plaintiff for said injuries, and recovered a judgment against plaintiff for the sum of $150, and costs of suit, taxed at $63.05; that said judgment was affirmed by the supreme court; that of all said suits and proceedings the defendants had due notice; that there is due from the defendants to the plaintiff the sum of $302.48, with interest from the 4th day of April, 1889. The answer of the defendants consists of a number of specific denials, which need not be noticed. On the trial of the cause the jury returned a verdict in favor of the plaintiff for the sum of $106.75, upon which judgment was rendered.

The testimony shows that the plaintiff, in connection with other common carriers, undertook to carry the piano beyond its own line, and deliver the same to Young. In other words, several common carriers, in effect, formed a line for the transportation of the property beyond the limits of their respective lines, and gave in this case a through bill of lading. In such case each carrier is the agent of the others to accomplish the carriage and delivery of the goods. Railroad Co. v. Campbell, 36 Ohio St. 647;Beard v. Railway Co., (Iowa,) 44 N. W. Rep. 803; Railroad Co. v. Roach, 35 Kan. 740, 12 Pac. Rep. 93; Railroad Co. v. Rodebaugh, 38 Kan. 49, 15 Pac. Rep. 899; Railroad Co. v. Fort, 9 Amer. & Eng. R. Cas. 392.

That the piano was injured by the negligence of the defendants is not denied, and is clearly shown by the proof. In such case the party sustaining the injury may bring his action directly against the carrier committing the injury or against the one that undertook to transport the goods. Railroad Co. v. Roach, 35 Kan. 740, 12 Pac. Rep. 93;Railway Co. v. Marston, 30 Neb. 241, 46 N. W. Rep. 485. As between the carriers, however, each one is liable for the result of its own negligence, and, although the first carrier may have assumed the responsibility for the transportation of property beyond its own line, and damages may be recovered against it for a failure in that regard, yet the carrier causing the injury will be liable to it for such damages. In other words, the party guilty of the wrong is ultimately liable therefor. This doctrine in another form has frequently been applied where a covenantee has been evicted from possession by paramount title. Smith v. Compton, 3 Barn. & Adol. 407; Williamson v. Williamson, 71 Me. 442;Bever v. North, 107 Ind. 544, 8 N. E. Rep. 576; St. Louis v. Bissell, 46 Mo. 157;Wendel v. North, 24 Wis. 223;Mason v. Kellogg, 38 Mich. 132; 2 Black, Judgm. § 567...