
    The G., H. & H. R’y Co. v. S. B. Allison.
    (Case No. 1358.)
    1. Pleading — Contract.— An agreement by a railway company to forward cars upon which fruit was loaded on its line of road, and on lines connecting with it, and to deliver the cars thus loaded and forwarded to the agent of the shipper at Chicago, is in effect a contract that the freight shall go through upon those cars over the entire route without change.
    2. Common carrier.— When a carrier undertakes to carry goods not only over his own route but over connecting lines, he cannot contract that his responsibility shall cease at the end of his own line. He will still be held responsible, not only for the negligence of himself and his own servants, but of the connecting lines, they being considered his agents for carrying out the particular contract.
    3. Same.— If a common carrier deviates from his route, or forwards goods by different conveyances from those contemplated by his agreement, he becomes an insurer of the goods, and cannot avail himself of any exemption in his behalf in the contract.
    4. Same. — A railway company in receiving freight stipulated. against responsibility for damage beyond its own line, but agreed to forward the goods through to Chicago'in the cars in which they were loaded. Held that, by changing the cars after they left the road of the company, it assumed the risk of the safe transportation of the goods, notwithstanding the stipulation against liability for damage beyond its own line.
    Appeal from Galveston. Tried below before the Hon. Wm. H. Stewart.
    Appellee shipped by appellant’s road five cars of melons, from the city of Galveston, in Texas, to Chicago, Illinois. Somewhere on the route to Chicago, the cars were broken open, appellee’s locks were taken off, the melons transferred into common box cars, and many were wasted and destroyed. They reached Chicago in a damaged condition. Appellee brought suit in the district court of Galveston county for the difference between the market price of good melons at the time the melons reached Chicago, and the price received.
    Defendant answered by general and special demurrers, and pleaded a special contract, signed by the shipper, that defendants should only be liable for damages on their own route; that the usage of the trade was for the defendant to deliver freight shipped to be delivered beyond its own route to the connecting carrier, and their liability ended with such delivery, and the usage was well known to plaintiff; that the melons were delivered at their terminus at Houston in as good order as received, without delay and under seal, and denied any contract to carry beyond Houston, and claimed to be forwarders only beyond Houston. The defendant’s demurrers were overruled and defendant excepted.
    The case resulted in verdict for the plaintiff against the defendant for §1,532, and judgment was entered on the verdict.
    Defendant gave in evidence this contract:
    “ST. L. & I. M. & S., 42GS. • OKtGINAL.
    “ CONTRACT.
    “Galveston, Houston & Henderson R. R. Co. of 1871,
    “Galveston Station, 6, 26, 1881.
    “ In consideration of the Galveston, Houston & Henderson Railroad Company of 1871 transporting my property as described, carload of melons, from Galveston station to Chicago station, the same being consigned to G. Lasher & Son, in and for the following rates:
    “ It is expressly understood and agreed that said company is, and the connecting companies over whose line said goods may pass to their destination are, not liable to shipper, consignee, or owner, for any damage or in jury to the goods, that may occur from leakage, decay, chafing, breakages, effects of heat or cold, fire while in transit, or at stations, or from- any other'causes whatever, not the result of collision of cars, or of cars being thrown from the trade while in transition, nor is said Galveston, Houston & Henderson Railroad Company of 1871 to be liable for any damage, loss or injury occurring not on its own railroad.
    “And I further guaranty to said, company or companies, that any and all freight and other necessary charges that may accrue, as provided by tariffs of said road, or roads, shall be paid by consignee within twenty-four hours after arrival of said goods at destination.
    “ Signed, sealed and delivered in duplicate.
    “ S. R. Allison. [Seal.]
    “ War. 31. Evans, Witness.”
    
      The following notice was printed on the face of this contract:
    “ READ CAREFULLY.
    “ This contract is to be executed in duplicate by all shippers of all kinds of furniture or household goods, and all kind of perishable property, the original in every case to be attached by being pinned to freight way-bill accompanying shipment. Duplicate to be retained by agents. Any agent receiving and forwarding such goods without this contract attached to his way-bill will have the same' returned to him with charges, and be held personally responsible for all charges and damages that may accrue.”
    Appellee loaded the cars himself, packed the melons carefully in hay, locked the cars with his own locks, took receipts for them as being consigned to G. Lasher & Son, 125 S. Water street, Chicago, Illinois, and appellant agreed to deliver said melons at Chicago in a reasonable time, the schedule time being about five days.
    Allison testified: “ The general agent of appellant’s road promised and agreed that the melons in said cars should go through to Chicago without breaking bulk and without transfer.”
    The foregoing, in connection with the opinion, presents the case.
    
      Edward Austin, for appellant.
    I. The petition setting up a contract to forward, and showing no damage on defendants’ route, the defendants were not liable as common carriers beyond their own route, in the absence of a contract to carry through. Redfield on Carriers, sec. 181; Lawson’s Contracts of Carriers, sec. 177; Reed v. U. S. Express Co., 48 N. Y., 462; Lawson’s Contracts of Carriers, sec. 236 and references; 2 Story on Contracts, pp. 210, 214; American Express Co. v. Second Nat. Bank, 69 Pa. St., 394.
    II. There being no partnership alleged or proved between the companies on the line from Galveston to Chicago, the company on whose line the loss occurred would alone be liable. 2 Story on Contracts, sec. 759; Hood v. Rew York & Rew Haven R. R. Co., 22 Conn., 1; Lawson’s Contracts of Carriers, sec. 177, p. 246; Reed v. U. S. Express Co., 48 N. Y., 462; Angle v. Miss. R’y, 9 Iowa, 487; Redfield on Carriers, sec. 189.
    
      W. B. Denson, for appellee, cited
    Lawson on Contracts of Carriers, 234, 235, 238, 239, 240; also pp. 181-2, 142; 19 Wend., 534; Foy v. Troy & Boston Railway, 24 Barb., 382; Kyle & Laurens Railway, 10 Rich. (S. C.), 382; Illinois Central Railway v. Copeland, 24 Ill., 332; 2 Duval, 4; 2 Redf. on Railways, p. 117, and notes.
   Willie, Chief Justice.—

On a former day of this term we adopted the opinion of the Commissioners of Appeals reversing the judgment of the court below and remanding this cause for a new trial. Since then a motion for rehearing has been filed, which we are asked to grant for the reason that the opinion rendered in it was based upon a misconstruction of the pleadings of the plaintiff below. It was said in the opinion of the commissioners that there was no sufficient allegation in the petition that appellant contracted with Allison that the melons, loaded by him at Galveston upon appellant’s cars, should go through to Chicago in the same cars upon.which they were shipped. The statement contained in the petition that plaintiff “ shipped from said city of Galveston by said defendant’s railway, to be delivered by said railway and its agents and connecting lines, at the city of Chicago aforesaid, five cars of watermelons,” was held an insufficient averment of such contract. Hence a charge of the court, based upon the assumption that any such agreement had been alleged, was held erroneous, and for that reason the judgment was reversed. The motion for a rehearing calls to our attention other averments of the petition, which, taken in connection with that already recited, it is insisted, amount to a sufficient allegation of a contract to transport the freight through to Chicago in the same cars upon which it was loaded at Galveston.

It is alleged that appellant promised and agreed to forward said cars immediately and with dispatch, after they were loaded upon the days aforesaid, to plaintiff’s agents in the city of Chicago. It was also alleged that these cars were turned over to plaintiff for the purpose of shipping melons thereon from Galveston to Chicago; that plaintiff loaded them and retained the keys with which they were locked; and that the agreement violated by appellant was one in which it promised to forward said cars loaded with the melons to Chicago. The principal breach of contract alleged is the breaking of the locks upon the doors of the cars, and unloading and taking the fruit from them, and reloading it upon other cars different from those on which it was shipped, in consequence of which it was wasted and destroyed. The evidence was full to the point that the appellant did agree that the identical cars upon which the melons were placed at Galveston, and which were refrigerating cars, adapted to their safe conveyance, should go through' with them to Chicago, the place of their destination. There was proof also tending to show that the fruit, was taken from these cars and loaded . O upon others less adapted to its safe transportation, whilst in charge of a railroad connecting with that of appellant, and .was thereby-damaged.

There was conflict in the testimony as to whether or not the a,ppellee had entered into a binding written stipulation as to one of the car-loads thus shipped, releasing the railroad company from all liability for damage occurring to it not on the railroad of the company.

Under this state of pleading and evidence the court gave the following charge: “That if the jury believe, from the evidence, that the plaintiff signed the written paper limiting defendant’s liability 'to its own route, then for that car-load of melons they would not be liable to damages thereto occurring beyond their own terminus, unless they agreed they should go to their destination in the same car, and, by reason of a change at Cairo, the damage occurred.”

This charge was held erroneous in our former opinion, as we have already stated, for the reason that there was no allegation that the company agreed that the melons should go to their destination in the same car upon which they were loaded.

The former opinion affirms the rulings of the court in every other respect, and holds that this charge would not be objectionable if appellee’s allegations were sufficient to support it.

Upon a closer examination of the pleadings of plaintiffs below, we have concluded that, whilst they are not as clear and explicit as they should be, they are sufficiently full to charge such a contract as was stated in the instruction and proven on the trial.

An agreement to forward the cars upon which the fruit was loaded, over the line of appellant, and lines connecting with it, and to deliver those cars thus loaded and forwarded to the agent of the shipper at Chicago, would seem to be equivalent to a contract that the fruit should go through upon those cars over the entire route without change.

The mere averment that five cars of melons were to be thus delivered leaves it doubtful whether it was intended to charge the contract to have been for the delivery of the cars or of the freight which they contained. Construing the allegations most strongly against the pleader, the latter construction would have to be adopted. But the subsequent allegations to which we have alluded render it at least reasonably certain that the contract was to forward and deliver the identical five cars upon which the freight was placed before it left Galveston.

The charge of the court having sufficient pleading as well as evidence to sustain it, the only remaining question is, “ does it announce a correct principle of law ? ”

It has been generally held that where there is no express statute forbidding it, a carrier may contract not to be liable for damages which do not occur from the negligence of himself or his servants or agents. R. R. Co. v. Lockwood, 17 Wall., 357; Hooper v. Wells, 27 Cal., 11; Adams Express Co. v. Trulick, 38 Ind., 150; Rhodes v. Louisville, etc., R. R. Co., 9 Bush, 688.

When he undertakes to carry goods not only over his own route, but over connecting lines, he cannot contract that his responsibility may terminate at the end of his own line. Lawson on Carriers, § 235.

He will still be held responsible for the negligence, not only of himself and his servants, but of the connecting lines, they being considered his agents for carrying out the particular contract. Bank of Ky. v. Adams Ex. Co., 93 U. S., 174, 183.

The exemption from liability is, however, available only where the carrier forwards the goods consigned to him in the manner and by the route with reference to which the contract is made. If he deviates from his route, or forwards the goods by different conveyances from those contemplated by his agreement, he becomes an insurer of the goods, and cannot avail himself of any exceptions made in his behalf in the contract. Fatman v. Cincinnati R. R. Co., 2 Disney, 248; Robinson v. Merchants’ Dispatch Trans. Co., 45 Iowa, 470.

The contract to forward the melons in this case through from Galveston to Chicago on the cars in which they were loaded was an entirety.' By changing the cars after they left appellant’s road the risk "of their safe transportation was assumed by its agents, the connecting line, when the change occurred, for the company, and it became liable notwithstanding the stipulation against damage beyond its own terminus.

A case in point is that of Stewart v. Merchants’ Dispatch Co., 47 Iowa, 229. There goods were delivered to a transportation company at Worcester, Massachusetts, to be taken to Muscatine, Iowa, through without transfer, in cars owned and controlled by the company, and the contract contained a clause of exemption against liability for loss by fire. When the goods reached Chicago they were transferred to a warehouse and consumed by fire the same day. It was held that the company were liable for the loss notwithstanding the exemption.

The contract in this case, so far as the limitation of liability is concerned, was in effect that the defendant company were not to be liable for any damage or loss occurring beyond their own route, provided the freight should not be changed from the cars in which it was shipped.

This limitation of liability was made only as to one of the cars upon which the fruit was loaded, and the charge of the court had reference to that one alone.

0 All facts which it was the province of the jury to find were submitted to their judgment by the charge. They were to find as to whether or not the agreement to limit liability was made; also the agreement to take the freight through without change of cars; and finally as to whether or not the change occurred, and the damage resulted from it.

All these facts found for plaintiff, the conclusion of law properly followed that the defendant company was liable.

It was not requisite to charge as to any imperative necessity or reasonable cause for the company’s deviation from, its contract, as no proof on that subject was introduced.

We conclude, therefore, that the charge was correct under the pleadings, the proof and the law applicable to the case, and the rehearing applied for is granted. Ho other ground for reversing the judgment below having been stated in the opinion heretofore delivered, except the supposed error of this charge, we adopt the report of the commissioners upon all points discussed in it, except such as are dissented from in this opinion, and the judgment below is accordingly affirmed.

Affirmed.

[Opinion delivered March 29, 1883]  