Saxon Mills v. New York, N.H. & H.R. Co.

• Decision Date: 20 May 1913
• Citation: 101 N.E. 1075,214 Mass. 383
• Parties: NEW YORK, N.H. & H. R. CO.; SAXON MILLS v. NEW YORK, N.H. & H. R. CO.; SAXON MILLS v. PENNSYLVANIA R. R. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 383

101 N.E. 1075

NEW YORK, N.H. & H. R. CO.; SAXON MILLS v. NEW YORK, N.H. & H. R. CO.; SAXON MILLS v. PENNSYLVANIA R. R. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1913

COUNSEL

Mayberry Hallowell &amp Hammond, of Boston, and Williams & Vincent, of Milford, for plaintiff.

John L Hall and Stuart C. Rand, both of Boston, for defendant New York, N.H. & H. R. Co.

R. G Dodge and F. W. Johnson, both of Boston, for Southern Ry. Co.

Benj. N. Johnson, of Boston, for Pennsylvania R. R.

OPINION

SHELDON, J.

In the first one of these two cases, which were tried together in the superior court and have been argued together before us it appeared that the defendant company received the two cars containing these goods at its Milford station from the Grafton & Upton Railroad Company. The defendant had then no contract with the plaintiff or with the Draper Company, the consignor; it had not issued, and apparently never undertook to issue, any bill of lading for them; nor did it enter or attempt to enter into any express or written contract for their transportation. But it received the cars without objection and undertook to transport them over its own lines and to deliver them to the next carrier on their way to their final destination. This created a contractual relation between the defendant and the owner of the goods, and bound the defendant to the ordinary duties of a common carrier. With the cars the defendant received, also without objection, plain and unmistakable directions that the cars were to go to their final destination at Spartansburg, S. C., by way of the Eastern and Southern Despatch, through Alexandria, Va., and over the road of the Southern Railway Company. The 'Eastern and Southern Despatch' is the designation of an established route, operating from points in New England over the Pennsylvania Railroad and its connections to Alexandria and thence over the Southern Railway to Spartansburg and other points in the South. The defendant had however no interest in this Despatch. The defendant received from the Grafton & Upton Railroad Company the freight charges for these goods for the whole distance to Spartansburg, and was itself to settle those charges with the various companies over whose lines the goods were to go.

As the defendant received these goods with explicit directions as to their transportation and forwarding, it assumed the obligation of transporting them and delivering them to the next carrier in accordance with these directions. Wright & Colton Wire Cloth Co. v. Warren, 177 Mass. 283, 58 N.E. 1082; Danna v. N.Y. Central R. R., 50 How. Prac. (N. Y.) 428; Railroad v. Cabinet Co., 104 Tenn. 568, 58 S.W. 303, 50 L. R. A. 729, 78 Ann. St. Rep. 933. Instead of performing this duty, it took upon itself to alter these shipping directions, and directed the goods to be sent by the 'Atlantic Coast Despatch,' another route, which after reaching Alexandria varied from the route which the plaintiff had selected, by going over other railroads to the same final destination. The result of this conduct of the defendant was that these cars, after having been properly carried to Alexandria, were there delivered to the railroad whose lines with others formed the Atlantic Coast Despatch, and while going over those lines were destroyed by a flood and fire, for the effect of which a common carrier would not ordinarily be responsible.

The defendant was under the contractual duty to transport these goods to its connection with the Pennsylvania Railroad and there to deliver them with the shipping directions to that company. It received full pay for this service; it received also full payment for the transportation beyond its own line, and undertook to pay therefor. It is idle to say that it had entered into no contract with the plaintiff or the plaintiff's agent the consignor of the goods. The issue of a bill of lading or the execution of any other formal contract was not necessary. Finn v. Western Railroad, 112 Mass. 524, 532, 17 Am. Rep. 128. Whether there was any contract between the plaintiff and the companies forming the Eastern and Southern Despatch, did not concern the defendant. It need not have received the goods and the charges for freight and have undertaken the duty of transportation according to the shipping directions, without first obtaining whatever information it needed and issuing a bill of lading; but it chose to do so, and must be held to discharge the obligation which it thus assumed.

Under these circumstances its act in changing the route to be taken by the goods and directing that the changed route be followed was wholly wrongful. S.D. Seavey Co. v. Union Transit Co., 106 Wis. 394, 82 N.W. 285; Cincinnati, New Orleans & Texas Pacific Railway v. Steele, 140 Ky. 383, 131 S.W. 22, 140 Am. St. Rep. 388. It undertook, apparently without reason, to deal with the goods as if they had been its own, to say that they should not go over the route and by way of the railroads selected by the shipper, but by a different route and over the lines of other companies. It makes no difference that the change involved no greater expense or delay, and no greater risk of loss so far as could be seen in advance. This conduct of the defendant was tantamount to a conversion. Briggs v. Boston & Lowell Railroad, 66 Allen, 247, 83 Am. Dec. 626; McKahan v. American Express Co., 209 Mass. 270, 95 N.E. 785, 35 L. R. A. (N. S.) 1046, Ann. Cas. 1912B, 612; Forsythe v. Walker, 9 Pa. 148; Hutchings v. Ladd, 16 Mich. 493, 501. It was not a mere failure to forward shipping directions, which simply would have made the defendant liable for the proximate results of its negligence, as in North v. Merchants' Transportation Co., 146 Mass. 315, 15 N.E. 779, Little Miami R. R. v. Washburn, 22 Ohio St. 324, and Booth v. Missouri, Kansas & Texas Pacific Railroad (Tex. Civ. App.) 37 S.W. 168. It was not mere nonfeasance or delay, or even a bare intermeddling with the goods, not involving a change in the disposition to be made of them. It was the exercise of dominion over the goods, the substitution of the defendant's will for that of the owner as to what should be done with them. It caused, apparently it was intended to cause, a delivery of the goods to one whom neither the owner nor the consignor had authorized to receive them. This of itself would have been a conversion. Claflin v. Boston & Lowell Railroad, 7 Allen, 341; Hall v. Boston & Worcester Railroad, 14 Allen, 439, 443, 92 Am. Dec. 783; Libby v. Ingalls, 124 Mass. 503; Forbes v. Boston & Lowell Railroad, 133 Mass. 154; Merrick v. Webster, 3 Mich. 268; Michigan Southern Railroad v. Day, 20 Ill. 375, 71 Am. Dec. 278; Georgia Railroad v. Cole, 68 Ga. 623, 627; Davis v. Garrett, 6 Bing. 716, 723, 724; Joseph Thorley, Ltd., v. Orchis Steamship Co. [1907] 1 K. B. 660. It may be that the act done was not so far a technical conversion that if the goods had reached Spartansburg in safety, the plaintiff would not have been obliged to receive them and thus to relieve the defendant from liability. See 2 Wyman on Public Service Corporations, § 908, and cases there cited. But this need not be considered. The liability of the defendant on the case presented is the same in either event. The defendant's wrongful act has been followed by the loss of the goods without their having been ever restored to the control of the owner.

The defendant's contractual responsibility was not merely to the connecting railroad company from which it received the goods; it was rather to their consignee or owner. It would not have been necessary to speak of such a contention if it had not been asserted in argument. Nor can the defendant's failure to issue a bill of lading as required by the Carmack amendment to the Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, 34 Stat. 584 [U. S. Comp. St. Supp. 1911, p. 1307]) avail it as a defense. Unless it knew of and relied upon the bill of lading to be issued by the Eastern and Southern Despatch, this was its own failure of duty, for which neither the plaintiff nor the consignor can be held responsible. Its liability is for its own wrongful act, which made it responsible for the preservation and safe delivery of the goods, and we need not consider whether it is responsible as for conversion or rather as an insurer of the goods. McKahan v. American Express Co., 209 Mass. 270, 276, 95 N.E. 785, 35 L. R. A. (N. S.) 1046, ann. Cas. 1912B, 612; Johnson v. New York Central Railroad, 33 N.Y. 610, 88 Am. Dec. 416; Goodrich v. Thompson, 44 N.Y. 324; Maghee v. Camden & Amboy R. R. Transportation Co., 45 N.Y. 514, 6 Am. Rep. 124; Isaacson v. New York Central Railroad, 94 N.Y. 278, 46 Am. Rep. 142; Wilts v. Morrell, 66 Barb. (N. Y.) 511; Philadelphia & Reading Railroad v. Beck, 125 Pa. 620, 17 A. 505, 11 Am. St. Rep. 924; Railroad v. Odil, 96 Tenn. 61, 33 S.W. 611, 54 Am. St. Rep. 820; Booth v. Missouri, Kansas & Texas Pacific Railway (Tex. Civ. App.) 37 S.W. 168.

We see no question upon the conceded facts that could have been submitted to the jury. The testimony of Byrne, the defendant's vice president, in answering the ninth interrogatory of the plaintiff, that the defendant received no directions at Milford as to the route by which the cars were to be sent to Spartansburg, was controlled by the rest of his answers, and was manifestly incorrect. Indeed this was hardly contested at the argument before us.

That the railroad companies making up the Eastern and Southern Despatch may also be liable to the plaintiff under the contract contained in the bill of lading is of course no defense to this action. The plaintiff may pursue all its remedies until it has obtained satisfaction for its loss.

We cannot see that the defendant was prejudiced by the admission...