Palmer v. Chicago, B. & Q. R. Co.

• Decision Date: 31 January 1888
• Citation: 13 A. 818,56 Conn. 137
• Court: Connecticut Supreme Court
• Parties: PALMER et ux. v. CHICAGO, B. & Q. R. Co. et al.

13 A. 818

56 Conn. 137

PALMER et ux.

v. CHICAGO, B. & Q. R. Co. et al.

Supreme Court of Errors of Connecticut.

January Term, 1888.

Appeal from superior court, Litchfield county; SANFORD, Judge.

This was an action by Henry E. Palmer and wife against the Chicago, Burlington & Quincy Railroad Company and the Pennsylvania Company, for breach of contract to carry goods. There was a judgment for plaintiffs against the former company, from which it appeals.

George A. Hickox and John T. Hubbard, for plaintiffs. Groves & Judd, for Chicago, Burlington & Quincy Railroad Company. S. H. Fenn, S. A. Herman, and A. T. Roreback, for Pennsylvania Railroad Company.

PARDEE, J. This is a complaint for breach of a contract to transport goods as common carriers, asking for judgment against one or the other of the two defendant corporations, the Chicago, Burlington & Quincy Railroad Company and the Pennsylvania Company. The court rendered judgment against the former, and in favor of the latter; and the former, with the plaintiffs, appealed to this court. The following finding of facts was made by the court below: The Chicago, Burlington & Quincy Railroad Company's road extends from Council Bluffs, Iowa, to Chicago, Ill., Chicago being its eastern terminus, at which place its road connects with the railroad of the other defendant. The Pennsylvania Company's road extends from Chicago to Pittsburg, Pa., that being its eastern terminus. On the 20th day of May, 1885, the plaintiffs, at Council Bluffs, delivered to the Chicago, Burlington & Quincy Railroad Company the goods mentioned in the complaint to be transported to Litchfield, Conn., and received from the company the following bill of lading:

"COUNCIL BLUFFS, May 20, 1885.

"Received from P. T. Mayne, in apparent good order, by the Chicago, Burlington & Quincy Railroad Company, to be transported to——, the following articles, as marked and described below, subject to the general rules of the said company, and the conditions and regulations of their published freight tariff applying on shipment of freight from this station to the destination named; it being expressly agreed and understood that the said Chicago, Burlington & Quincy Railroad Company, in receiving the said packages to be forwarded as aforesaid, assumes no other responsibility for their safety than may be incurred on their own road.

MARKS AND CONSIGNEE.

Mrs. H. E. Palmer,

Litchfield, Ct.

(Schedule of Articles)

Guaranteed.

DESCRIPTION OF ARTICLES AS GIVEN

BY CONSIGNOR.

H. H. Goods.

Wt. 4,200 pounds.

O. R. & Rel.

Chas. Keith. D."

The Chicago, Burlington & Quincy Railroad Company transported the goods, upon its own road, safely and without damage, to Chicago, arriving there the 23d day of May, 1885, and on that day, being Saturday, placed the car containing the goods upon a piece of railroad track occupied in common by both the defendants, and called a "Y." At about half past 10 in the forenoon, the car containing the goods was taken by the Pennsylvania Company and switched onto its track, and taken to its freight depot, where the goods were unloaded by the workmen of the Pennsylvania Company, and placed in its freight depot, May 25, 1885. At the time the goods were so taken by the Pennsylvania Company, the bill of lading accompanying the same was also delivered to that company, but by mistake on the part of some of the officers of the Chicago, Burlington & Quincy Railroad Company the bill of lading was not marked, "Freight charges guarantied," as it should have been. The goods remained in the depot of the Pennsylvania Company till the 26th of May, 1885, when the proper officers of that company notified the Chicago, Burlington & Quincy Railroad Company that they declined to forward the goods, because the freight charges were not guarantied, and returned the expense bill to the Chicago, Burlington & Quincy Railroad Company, refusing to receive the goods for transportation till the freight charges were paid, or until a notation of "Freight charges guarantied" was entered thereon; and in the afternoon of June 1, 1885, the expense bill was received from the Chicago, Burlington & Quincy Railroad Company by the Pennsylvania Company, with these words added, "Freight charges guarantied;" but the expense bill was not so received till after the fire hereinafter described, and after the injury complained of was done to the goods. On the 1st day of June, 1885, a fire broke out in the depot of the Pennsylvania Company, and a part of the goods were destroyed, and a part injured and damaged by the fire and by water used to put out the fire; the amount of the damage being $698. I find that the Chicago, Burlington & Quincy Railroad Company is liable therefor, and judgment is rendered accordingly against that company, and for the plaintiffs to recover of it that sum and their costs, and for the other defendant, the Pennsylvania Company, to recover of the plaintiffs its costs. In coming to this conclusion, I find that by virtue of the contract guarantying freight charges from Council Bluffs, the Chicago, Burlington & Quincy Railroad Company undertook and agreed to transport the goods from the place of shipment to Litchfield, Conn., and that the delaying the same at Chicago was owing to its not having furnished the Pennsylvania Company its freight charges, or notifying that company that freight charges were guarantied, as it was in duty bound to do. I further find that it was the custom between those companies that each should receive as common carriers, and transport towards their destination, all goods left on the piece of common track called a "Y," by the other company, on being prepaid the freight thereon, or on receipt of an expense bill with the words, "Freight charges guarantied," or words equivalent thereto, indorsed by the delivering company thereon; but it was their custom not to receive or forward such goods unless freight was prepaid, or freight charges guarantied. The Chicago, Burlington & Quincy Railroad Company claimed upon the facts and the contract of shipment that it only contracted to carry the goods from Council Bluffs to Chicago, and that it had fully performed its contract by placing the same in the possession of the ...