Nashville, C. & St. L. Ry. v. Stone & Haslett

• Decision Date: 06 February 1904
• Citation: 79 S.W. 1031,112 Tenn. 348
• Parties: NASHVILLE, C. & ST. L. RY. et al. v. STONE & HASLETT.
• Court: Tennessee Supreme Court

79 S.W. 1031

112 Tenn. 348

NASHVILLE, C. & ST. L. RY. et al. v. STONE & HASLETT.

Supreme Court of Tennessee.

February 6, 1904

Appeal from Circuit Court, Bedford County; W. C. Houston, Judge.

Action by Stone & Haslett against the Nashville, Chattanooga & St Louis Railway and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed as to defendant Nashville, Chattanooga & St. Louis Railway, and affirmed as to defendant Louisville & Nashville Railroad Company.

McALISTER J.

Stone & Haslett recovered a verdict and judgment in the circuit court of Bedford county against the defendant railroad companies for the sum of $900 as damages for injuries to four car loads of hogs shipped from Shelbyville, Tenn., to Louisville, Ky.

Both defendants appealed and have assigned errors.

The cause of action, as outlined in the first count of the declaration, was as follows:

"That at 4 o'clock on September 2, 1899, they (plaintiffs) delivered in good condition at Shelbyville, Tenn., to the defendants, as such common carriers operating such connecting lines, 363 head of hogs, the property of the plaintiffs, contained in four cars of the defendants, and in consideration of the sum of $164--being $41 per car, and the full tariff rate charged by the defendants for the transportation of said freight--which was paid at the time by the plaintiffs to the defendants, and for which the defendants, as common carriers, received said hogs to be safely carried and delivered within a reasonable time in like good and sound condition in which they were received to plaintiff's consignees, Mansfield and Jeffries, at Louisville, Kentucky; and the plaintiffs aver that the defendants failed to deliver said hogs within reasonable time and in good and sound condition, as they were bound to do, but, on the contrary, wrongfully and negligently delayed said hogs in transit to their destination, and kept them confined in the cars in which they were shipped without food, water, or rest for more than twenty-eight hours after receiving same, when they should and could have been delivered at their destination within seventeen hours from the time they were received; and by reason of the negligence of the defendants and unreasonable delay in the transportation and delivery of said hogs and freight to plaintiff's consignees 113 of said hogs perished and died, being of the value of $1,043.19, which was a total loss to the plaintiff," etc.

It will be observed that under this count paintiff sought to recover for a breach of the carrier's common-law duty.

The second count of the declaration sets out a written contract of affreightment and alleges a breach of said special contract.

The defendants pleaded the general issue, and also the following special defenses, viz.: (1) That the Nashville, Chattanooga & St. Louis Railway received the hogs under the written contract, and that it transported them with reasonable diligence from Shelbyville to Nashville, and at the latter point delivered them in good condition, within a reasonable time, to the Louisville & Nashville Railroad Company. (2) That it only agreed to transport the hogs from Shelbyville to Nashville, and at the latter point to deliver same to its connecting carrier. (3) That the several clauses of the written contract limiting defendant's common-law liability are valid, and that these clauses exempted from all liability except for gross negligence; that there was no negligence; and that in no case can there be recovered for more than $5 per head, this being the amount agreed upon as the reasonable value of the animals shipped.

Plaintiffs filed replications to the pleas of the Nashville, Chattanooga & St. Louis Railway, averring that the written contract was without a valuable consideration; that plaintiffs were imposed upon and deceived by defendant's agent; and that the live stock contract was a fraudulent device, conceived for the purpose of avoiding its common-law liability as a common carrier.

The Nashville, Chattanooga & St. Louis Railway filed demurrers to these replications, assigning various causes, but which demurrers were disallowed and overruled by the court.

The first assignment of error is that there is no evidence to support the verdict. This assignment of error is based upon the assumption that the special contract of shipment entered into between the parties was valid and enforceable, and that the plaintiff failed to show a breach of any stipulation of the special contract. It is denied by the defendants that the written contract was supported by any consideration. It is charged that it was not fairly obtained, for the reason that the shipper had no choice of a contract with and without the common-law liability of the carrier. One of the stipulations of the written contract was that the Nashville, Chattanooga & St. Louis Railway was to be liable for loss or damage only while the stock was being transported upon its own line. It is provided therein that the Nashville, Chattanooga & St. Louis Railway shall transport each car load of stock from the initial point of shipment to Nashville, Tenn., but it guaranties a through rate of freight to Louisville, Ky., the final destination. The specific stipulation of the contract is as follows:

"It is further distinctly understood by the parties hereto that all liability of the Nashville, Chattanooga & St. Louis Railway, as carrier of the said stock, shall cease at its destined station, if on said company's railroad; but if destined to a point beyond said company's railroad, then at the company's freight station at its terminus, when ready to be delivered to the owner, consignee or carrier whose live may constitute a part of the route to destination."

In Merchants' Dispatch Transportation Company v. Bloch Bros., 86 Tenn. 392, 6 S.W. 881, 6 Am. St. Rep. 847, it was said as follows:

"It is likewise settled that a common carrier is not bound in law to transport goods beyond its terminus, and that it may therefore lawfully stipulate that it shall not be liable for loss after the goods have passed beyond the limits of its own line and upon the line of another."

This doctrine is approved in the case of Bird v. Railroad Company, 99 Tenn. 719, 42 S.W. 451, 63 Am. St. Rep. 856, in the following language: "The contract of shipment was made between the shipper and the initial carrier, and was for through transportation from receiving point to destination. The printed form, contract, or bill of lading then in use by the carrier contained the provision that in case of loss, damage, detriment, or delay the railroad in whose actual custody the goods were at the time of such loss, damage, detriment, or delay shall alone be responsible. The first carrier had the legal right at its election to undertake the transportation of the goods to the terminus of its own line merely, or to their ultimate destination. It was under no legal obligation, in the first instance, to transport them beyond the end of its own line, and for that reason it was authorized in law, when contracting for through transportation, to limit its liability by the clause mentioned." Railroad Co. v. Brumley, 5 Lea, 401; Dillard Bros. v. Railroad Co., 2 Lea, 288; Telegraph Co. v. Munford, 87 Tenn. 190, 10 S.W. 318; 4 Elliott on Railroads, § 1432; Hutchinson on Carriers, § 149b.

In the case of East Tennessee, Virginia & Georgia Railroad Company v. A. P. Brumley, 5 Lea, 401, the headnote is as follows:

"A railroad company receiving goods for shipment beyond the terminus of its line may, by special contract, protect itself against liability for loss not occurring on its own line. And such contract will be presumed from the fact that a clause thus limiting the liability is to be found printed in the bill of lading, even though the shipper's attention was not called to it, if it appears that he had previously shipped like articles and taken like bills of lading."

In view of these principles and the special contract in this case, the duty imposed upon the Nashville, Chattanooga & St. Louis Railway was to promptly deliver in good condition the consignment of hogs to its connecting carrier. It was not necessary that such a stipulation be supported by any consideration. The common-law liability of the common carrier did not extend beyond the terminus of its own line, and there is nothing in this contract limiting the common-law liability of defendant company on this subject. Such a stipulation in a contract has uniformly been upheld regardless of consideration.

The question, then, is presented whether any loss or injury to this consignment of hogs occurred while it was in transit on the road of the Nashville, Chattanooga & St. Louis Railway.

The proof is undisputed that the shipment of hogs left Shelbyville for Wartrace on defendant's road at 4 o'clock p. m. on September 2, 1899. The train reached Wartrace without delay or accident of any kind at 4:50 p. m. The first freight train to Nashville on the main line after the hogs arrived at Wartrace was due at Wartrace at 8:20 p. m. This train arrived at 8:50 p. m., or 30 minutes late. The car load of hogs was attached to this train, and carried to Nashville, reaching the latter point at 12:40 a. m., being 10 minutes late. The regular schedule of the company between Shelbyville and Nashville for shipments of live stock was that they should leave Shelbyville at 4:20 p. m., and make connection at Wartrace at 8:20 p. m. This schedule had been observed for a long time, and the evidence shows that plaintiffs were thoroughly familiar with this schedule when they made the shipment. It was stated that they selected the afternoon train on account of the hot weather, and to get the benefit of the night run.

The proof is undisputed that...