Wyman v. Chicago & Alton R.R. Co.

• Decision Date: 01 May 1877
• Citation: 4 Mo.App. 35
• Parties: EDWARD WYMAN, Appellant, v. CHICAGO AND ALTON RAILROAD COMPANY, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 35

EDWARD WYMAN, Appellant,

v.CHICAGO AND ALTON RAILROAD COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

May 1, 1877.

1. Where several common carriers, each having its own line, associate and form what, to the shipper, is a continuous line, and contract to carry goods through for an agreed price, which the shipper pays in one sum, and which the carriers divide among themselves, then they are jointly and severally liable to the shipper with whom they have contracted, for a loss taking place on any part of the whole line, and the word “partners,” or any particular word to describe the relation existing between the carriers, need not be used in the petition.

2. Where there is any evidence tending to show the existence of such an association, contract, and loss, the case should not be taken from the jury.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

J. M. HOLMES, for appellant, cited: Coates v. United States Ex. Co., 45 Mo. 238; Wilcox v. Parmlee, 3 Sandf. 610; Nashua Lock Co. v. Railroad Co., 48 N. H. 339; Barton v. Wheeler, 49 N. H. 9; Bradford v. Railroad Co., 7 Rich. 201; Quinby v. Vanderbilt, 17 N. Y. 307; Chouteau v. Leach, 18 Pa. St. 224; Read v. St. Louis, etc., Ry. Co., 60 Mo. 199.

DRYDEN & DRYDEN, for respondent.

HAYDEN, J., delivered the opinion of the court.

This is an action for breach of a contract of affreightment. There are two counts in the petition, but only one need be noticed. The allegations are to the effect that the defendant, a corporation, with the Michigan Central, the Boston and Albany, and other railroad companies, whose names are given, constituted a joint association, under the name of the “Blue Line Transit Company,” for the purpose of running cars directly through from Boston and New York to St. Louis, and transporting goods, without change of cars, over the roads of the companies forming the Blue Line Transit Company; that defendant and these other companies were common carriers; that the defendant and the other companies, under said name, agreed to carry from Boston to St. Louis, and there to deliver to plaintiff, certain goods which they received and gave their bill of lading for under said name; that said companies, including defendant, failed, etc., and delivered the goods badly damaged. The answer denies these allegations, and sets up a special contract made with the Boston and Albany Railroad Company for carriage of the goods. At the trial the plaintiff put in evidence a bill of lading for the goods, signed “James Mill, Agent,” headed, “Through freight. Blue Line Transit Co. Boston to St. Louis. Contract under joint arrangement of the Boston and Albany, New York Central, Great Western, Michigan Central, and connecting railroads,” and containing the clauses, “to be transported to and delivered at the depot of the line at St. Louis,” and “this contract, and the responsibilities of the parties hereto, being limited and controlled by the rules and regulations printed upon the back of this receipt, as also by the terms of their printed tariffs of freight.” On the margin of the bill of lading is marked, “Blue Line, 19 State St., Boston,” and on its back are “conditions and regulations,” and an elaborate classification of articles. It appeared that this bill of lading was given to the plaintiff, in Boston, by Mill, who was the agent of the Boston and Albany Railroad Company, on the shipment of the goods. There was evidence, on the trial, tending to show that several railroad companies, of which the defendant was one, put into the “line” certain cars, painted blue, and that these cars were used as “through cars,” running over the roads of these different companies without breaking bulk; that the companies in the “line” employed a common agent at Detroit, who acted as an adjuster, keeping the mileage of the cars and settling the balances for their use; that, with the exception of this general manager of the “Blue Line,” the agent of each road acted for the ““line,” as the agent Mill did when he signed the bill of lading; that this bill of lading was in the form then used by the “line;” that the freight due each road was apportioned and paid to that road out of the gross freight charged; that these goods came over defendant's road, and that it collected from plaintiff the total freight, giving receipts signed “Samuel Smith, Agt.,” headed, “Chicago and Alton Railroad, Blue Line,” and containing a notice of the joint arrangement of the roads by which the goods were sent from New York and Boston to St. Louis without change of cars. It further appeared that the agent of defendant at St. Louis had the words “Blue Line” conspicuously displayed over his office; that he used the “Blue Line” headings as advertisements, and issued through bills to the east. There was evidence tending to show that the goods were damaged by negligence of one of the roads in the “line,” but none tending to fasten the fault upon the defendant, or upon any company in particular. The defendant demurred to the evidence, and the demurrer was sustained.

The first question is whether the respondent is liable as a joint contractor by virtue of the contract made with the appellant. If liable, the respondent may be sued alone, as by our law the contract is joint and several. The bill of lading in evidence does not, upon its face, purport to be the bill of the Boston and Albany Railroad Company. The agreement is to deliver the goods at the depot of the “line,” and the statement on the face of the paper is that the contract is made under “joint arrangement” of the connecting roads. The inference, if not the statement, is that the contract is made by the “Blue Line Transit Company.” The...