was not legally bound to indemnify the insured for the loss sustained.22 24 [836] B. Under Special Contract. Contracts of shipment which provide that the carrier shall have the benefit of any insurance effected by the shipper on the goods transported are valid and enforceable,23 in the absence of fraud or of any contract to the contrary with the insurer.2 The rule that an insurer when he has indemnified an owner of property for a loss occasioned by a carrier is entitled to all the means of indemnity which the satisfied owner held against the carrier, and that the owner cannot after loss relinquish any rights to which the insurer is entitled, does not prevent a valid agreement between the carrier and the shipper that the carrier shall have the benefit of any insurance to be effected by the owner.25 So contracts containing provisions of this nature are not in violation of statutes prohibiting carriers from limiting their common-law liability,26 nor in contravention of any other rule based on public policy.27 Since the carrier may in its own behalf take out insurance against its liability arising from negligence,28 contracts of the character under consideration are to cannot claim to be reimbursed by the carrier who is as blameless in respect to the injury as the insurance company. Here it was said: "They are both paid for the risk they take, and where the one is not more at fault than the other, I cannot see how, in equity, the carrier should be required to reimburse the insurer any more than the insurer should be required to reimburse the carrier"). [a] Where part of loss paid by insurer.-Where goods injured in transportation have been insured by the shipper and a part of the loss paid by the insurer, the shipper may sue the carrier not only for the unpaid balance due to him, but also as trustee for what has been paid by the insurer in ease of the carrier. Gales v. Hailman, 11 Pa. 515. Construction and operation of contracts. If the owner has received from the insurance company the amount of damages caused by loss or injury to the goods in shipment, he will of course be precluded by such stipulation from a recovery against the carrier for such loss or injury.3 Nevertheless, to entitle a carrier to the benefit of a stipulation in the shipping contract, giving to it the benefit of any insurance effected on the goods shipped, it is essential that the insurer should have made an unconditional payment of the damages to the insured; otherwise the carrier has no standing to enforce any claim to the benefit of the insurance.33 As between the carrier and the insurer it is held that, the contract which they have heretofore customarily made with the insured, and the result will probably be that the insurers will also make provisions in their policies, by virtue of which insurance on property in transit will have a limited character." Rintoul V. New York, etc.. R. Co., 17 Fed. 905, 908, 21 Blatchf. 439. LRA 424 and note; British, etc., Mar. Ins. Co. v. Gulf, etc., R. Co., 63 Tex. 475, 51 AmR 661. [a] Reasons for the rule.-(1) "It is not one of exemption from liability. The owner is under no obligation to insure; he is not compelled to furnish indemnity to the carrier; and, if he insures, can make a limited contract of insurance which does not cover losses through the carrier's negligence. There is, therefore, no contract of exemption against liability for loss by negligence, no agreement that the carrier shall be protected or be indemnified, but the contract simply is that, in the contingency of insurance, a consequent benefit will, in case of loss, result to the carrier. (2) It is not unfair to the owner. The carrier is at liberty to insure his interest in the property intrusted to his care, and the fact that he may obtain an indemnity from a third person by means of the owner's policy is not unfair to the owner, unless the ob [b] In whose name suit is brought.-(1) It has been held immaterial whether the action is brought in the name of the insurer or of the insured for its benefit. Steamship Wellesley Co. v. Hooper,taining such indemnity is, in reality, 185 Fed. 733, 108 CCA 71. (2) "The question as to who shall bring the suit is one to be determined between the shippers and the Insurance Company. It is no concern of the appellant (the carrier) whether the libel is brought in the name of the shippers or in the name of the Insurance Company. In either event, the right of the claimant in its defense would be identical." Pacific Coast SS. Co. v. Bancroft-Whitney Co., 94 Fed. 180, 36 CCA 135 [rev on other grounds 180 U. S. 49, 45 L. ed. 419, 21 SCt 278]. 22. Nord-Deutscher Lloyd v. Insurance Co. of North America, 110 Fed. 420. 49 CCA 1; Commercial Ins. Co. v. The C. D. Jr., 13 F. Cas. No. 7,051, 1 Woods 72. 23. Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt 750, 29 L. ed. 873 [aff 19 F. Cas. No. 11,112, 10 Biss. 18]; Bradley v. Lehigh Valley R. Co., 153 Fed. 350, 82 CCA 426 [aff 145 Fed. 569]; Pennsylvania, etc., R. Co. v. Burr, 130 Fed. 847; Rintoul v. New York Cent., etc., R. Co., 17 Fed. 905, 21 Blatchf. 439; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 NE 103, 52 AmR 728; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Burke v. Erie R. Co., 134 App. Div. 413, 119 NYS 309; Chase v. Washington Mut. Ins. Co., 12 Barb. (N. Y.) 595; Van Natta V. Mutual Security Ins. Co., 4 N. Y. Super. 490; Missouri Pac. R. Co. v. International Mar. Ins. Co., 84 Tex. 149, 19 SW 459; Gulf, etc.. R. Co. v. Zimmerman, 80 Tex. 605, 17 SW 239; Insurance Co. of North America v. Easton, 73 Tex. 167, 11 SW 180, 3 made compulsory upon him, because the owner can equitably receive but one satisfaction' for the loss of his goods. Hart v. Western R. Corp., 13 Metc. (Mass.) 99, 46 AmR 719. If it was a part of the bill of lading that the owner must insure for the benefit of the carrier, such condition would be unfair. (3) The contract is not necessarily unfair to the insurers. At common law, the owner who has been paid in full or in part for his loss by the insurance company, may sue the carrier upon the contract of bailment, and as to so much of the amount recovered from the carrier as is in excess of a full satisfaction of the loss, the owner will be a trustee for the insurance company. It seems that the effect of the clause in the bill of lading which is now under consideration is to provide that the owner in such circumstances is not a trustee for the insurance company, but a trustee for the carrier. If such a contract is entered into, without fraudulent concealment of the facts from the insurers, of which there is no evidence in this case, it cannot properly be considered unjust or unreasonable, because the insurance company obtains its remedy, not by virtue of a contract of its own with the carrier, but through the owner's contract, and its right depends upon or is subject to the agreement made by the owner with the carrier, which he is at liberty to make to suit his own interest, provided there is no fraudulent concealment from the insurers. They can, in view of this provision in bills of lading, modify [b] How contract effected.-A shipper, electing to accept a reduced rate by filling out the shipping order and accepting the bill of lading, is bound by the terms of the order making it a part of the bill of lading, and giving the carrier the benefit of insurance on the freight. Burke v. Erie R. Co., 134 App. Div. 413, 119 NYS 309. 24. Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 NE 103, 52 AmR 728; Chase v. Washington Mut. Ins. Co., 12 Barb. (N. Y.) 595. 25. Rintoul V. New York Cent., etc., R. Co., 20 Fed. 313. 26. British, etc., Mar. Ins. Co. v. Gulf, etc., R. Co., 63 Tex. 475, 51 AmR 661. 27. Insurance Co. of North America v. Easton, 73 Tex. 167, 11 SW 180, 3 LRA 424 and note. 28. Hartford F. Ins. Co. v. Chicago, etc., R. Co., 175 U. S. 91, 20 SCt 33, 44 L. ed. 84; Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt 750, 1176, 29 L. ed. 873 [aff 19 F. Cas. No. 11,112, 10 Biss. 18]; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 NE 103, 52 AmR 728. 29. Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt_750, 29 L. ed. 873; Phoenix Ins. Co. v. Erie, etc., Transp. Co., 19 F. Cas. No. 11,112, 10 Biss. 18; Roos v. Philadelphia, etc., R. Co., 199 Pa. 378, 49 A 344 [dist Willock v. Pennsylvania R. Co., 166 Pa. 184, 30 A 948, 45 Am SR 674, 27 LRA 228]. Contra St. Louis, etc., R. Co. v. Brass, (Tex. Civ. A.) 133 SW 1075. 30. Gulf, etc., R. Co. v. Zimmerman, 81 Tex. 605, 17 SW 239. 31. Missouri Pac. R. Co. v. International Mar. Ins. Co., 84 Tex. 149, 19 SW 459. 32. Rintoul V. New York Cent., etc., R. Co., 17 Fed. 905, 21 Blatchf. 439; Gulf, etc., R. Co. v. Zimmerman, 81 Tex. 605, 17 SW 239; British F. & M. Ins. Co. v. Gulf, etc., R. Co., 63 Tex. 475, 51 AmR 661. 33. Inman v. South Carolina R. Co., 129 U. S. 128, 9 SCt 249, 32 L. ed. 612: Bradley v. Lehigh Valley R. Co., 153 Fed. 350, 82 CCA 426; Pennsylvania R. Co. v. Burr. 130 Fed. 847; Bennitt v. Guiding Star. 53 Fed. 936 [aff 62 Fed. 407]; Cincinnati, etc.. R. Co. v. Spratt, 2 Duv. (Ky.) 4; Gulf, in the absence of any misrepresentation or intentional concealment by the shipper in obtaining insurance on the goods, or of any express stipulation on the subject in the policy, the provision in the shipping contract that the carrier shall have the full benefit of any insurance effected on the goods limits the right by way of subrogation of the insurer on paying to the shipper the amount of loss or damage.34 In other words, the contract between the insured and the carrier being valid, the latter is protected from any action by the insurer on payment by it for the loss or injury sustained.35 XXV. CONNECTING CARRIERS 36 [§ 837] A. Definition. In its broadest sense the term "connecting carrier' means one of several common carriers whose lines or parts thereof united constitute the route over which a shipment is to pass, and which participate in the transportation of such shipment.37 It has been defined, however, as one whose route, not being the first one, lies somewhere between the point of shipment and the point of destination;3 38 it becomes such by virtue of the agreement between the consignor or shipper and the first carrier, whereby the latter undertakes to deliver the shipment at its ultimate destination, etc., R. Co. v. Zimmerman, 81 Tex. 605, 17 SW 239. [a] Applications of rule.-(1) A bill of lading provided that, in case of loss or injury of the goods, the damage should be adjusted on the basis of their value at the place and time of shipment, and that the carrier should have the benefit of any insurance effected by the shipper. He insured the goods for their value at the port of destination, but the policy contained a provision that in case of any agreement between the assured and any carrier whereby, in case of loss for which the carrier would be liable, it should have the benefit of the insurance, there should be no liability on the policy beyond the amount which was not recoverable from the carrier, and to make good the loss temporarily by advancing money pending delay in collecting from the carrier, which should not affect the final liability of the insurer. The goods were damaged in shipment, and the insurer advanced a sum to the owner, taking a receipt by which he agreed to prosecute his claim against the carrier, and to refund to the insurer the amount collected. It was held that such advance was strictly within the terms of the policy, and did not constitute a payment of the loss, whereby the carrier could claim the benefit under the bill of lading as a set-off in an action by the owner to recover the damages. Pennsylvania R. Co. v. Burr, 130 Fed. 847, 65 CCA 331. (2) Where a bill of lading contains a provision entitling the carrier, in the event of its own liability for damages against which the consignor has obtained insurance, to recover the amount from the underwriter, in an action by the shipper against the carrier for damage to the goods it is no defense that the underwriter has agreed to pay plaintiff for his loss, and that the suit is for the underwriter's benefit, since the carrier has no claim on the insurance until it has paid plaintiff's claim. Cincinnati, etc., R. Co. v. Spratt, 2 Duv. (Ky.) 4. [b] Whether there was a loan or payment on account of insurance is a question for the jury where the amount of the loan was the exact amount of the insurer's liability on account of insurance given the shipper on the goods, and this is so notwithstanding the insured gave a receipt reciting that he had borrowed and received from the insurance company the amount in question. Roos v. Philadelphia, etc., R. Co., 199 Pa. 378. 49 A 344. 34. Wager v. Providence Ins. Co., 150 U. S. 99, 14 SCt 55, 37 L. ed. 1013; Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt 750, 29 L. ed. 873 [aff 19 F. Cas. No. 11.112, 10 Biss. 18]; Mercantile Mut. Ins. Co. v. Ca lebs, 20 N. Y. 173. and thus makes the carrier beyond its own route its agent for continuing the transportation, or else undertakes only to deliver the goods safely to the next carrier on the route, who thus becomes agent for the shipper for carrying them further.39 And this definition perhaps more accurately expresses the common acceptation of what is meant by the term "connecting carrier," 40 as appears from the decisions as to whether or not a local belt railroad,11 a switching company,12 a terminal company, or a transfer company, is or is not a connecting carrier. [a] The reason for the rule is (1) that the right of subrogation arising out of the contract of insurance and payment of the loss is only to such rights as the assured has by law or contract against third persons. Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt 750, 29 L. ed. 873. (2) "In any form of remedy the insurer can take nothing by subrogation but the rights of the assured; and if the assured has no right of action, none passes to the insurer." St. Louis, etc., R. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 235, 11 SCt 554, 35 L. ed. 154. 35. Phoenix Ins. Co. v. Erie, etc., Transp. Co., 19 F. Cas, No. 11.112, 10 Biss. 18. See also cases in the preceding note. 36. Connecting carrier: Duty to receive and transport property see supra § 55. Freight charges: over Action for see supra § 707. Affected by transportation several lines see supra §§ 697, 698. Duty to demand prepayment see supra § 693. Liability for: Deviation see supra § 159. Overcharges see supra § 712. Penalty for failure to adjust claim for damages see infra § 986. Violation of federal Twenty-Eight Hour Law see infra § 997. Lien for charges see supra § 723. Offsetting damages see supra § 706. Right to protection against unjust discrimination see supra § 754. 37. [a] Thus, where a car of freight was delivered by the initial carrier to a connecting carrier, to be placed on the consignee's sidetrack, and before unloading the connecting carrier was directed by the consignee to deliver the car to a buyer, and for that purpose delivered the car to the terminal carrier, for delivery to the buyer on its sidetracks, the three carriers were, under their joint traffic arrangements, "connecting carriers," within Code (1907) § 5548, permitting all such carriers to be jointly sued for loss of, or injury to, goods, and judgment to be given against those shown to be liable. Veitch v. Illinois Cent. R. Co., (Ala. A.) 68 S 575. 38. Lawson Carr. 342 [quot Nanson v. Jacob, 12 Mo. A. 125, 127 (rev on other grounds 93 Mo. 331, 6 SW 246, 3 AmSR 531)]. 39. Lawson Carr. 342 [quot Nanson v. Jacob, 12 Mo. A. 125, 127 (rev on other grounds 93 Mo. 331, 6 SW 246, 3 AmSR 531)]. 40. See infra this section. [a] Under special statute.-Where a carrier accepts freight from another line, but requires from the shipper a separate shipping contract, exempting it from liability for dam 44 43 ages occurring on any other line of road, but respects so much of the through contract originally made with the initial carrier as relates to the through rate, it is not a connecting line, within Rev. St. arts 331a, 331b, making all carriers connecting lines which recognize, acquiesce in, or act on, a contract for through carriage, and is not liable for any damage to the freight not occurring on its own line. Gulf, etc., R. Co. v. Short, (Tex. Civ. A.) 51 SW 261. 41. Chicago, etc., R. Co. v. Young, (Tex. Civ. A.) 107 SW 127. [a] Used as an agency by an initial carrier a local belt railroad to deliver shipments to a connecting carrier is not itself a connecting carrier. Texas, etc., R. Co. v. Scoggin, 40 Tex. Civ. A. 526, 90 SW 521. 42. Missouri Pac. R. Co. v. Wichita Wholesale Grocery Co., 55 Kan. 525, 40 P 899; St. Louis, etc., R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. [a] Thus (1) a railroad company switching cars over its own track from the line of the last carrier to the warehouse of the consignee, which is only a spur track of its own, is a connecting carrier of such goods and as such is liable for loss of or injury to them. Missouri Pac. R. Co. v. Wichita Wholesale Grocery Co., 55 Kan. 525, 529. 40 P 899 (where it was said: "A railroad transporting a passenger or car-load of freight one mile, using a switch-engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight or passenger train. The fact that compensation for this particular service was paid by the St. Louis & San Francisco Railway Company, while it might render that company also responsible, could not relieve the defendant company from its liability as a carrier"). (2) But a railway company engaged in shifting cars delivered to it by a carrier to the house tracks of consignees is not a connecting carrier, but is the agent of the carrier. St. Louis Southwestern R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. 43. U. S. v. Northern Pac. Terminal Co., 181 Fed. 879 [rev on other grounds 184 Fed. 603, 106 CCA 583] (holding that а terminal railroad company which receives cars of live stock from other railroad companies for transportation and delivery to another company or to stockyards, is a "connecting carrier" whose road forms a part of the line of road over which the shipment is made. within the meaning of the Twenty-Eight Hour Law [Act June 29, 1906 (34 U. S. St. at L. 607 c 3594)], and is subject to its provisions as to interstate shipments). 44. Western, etc., R. Co. v. Expo Who is initial carrier. It has been held that an initial carrier is the one contracting with the shipper, and not necessarily the one whose line constitutes the first link in transportation. Although the operator of express cars fixed no through rate to points within its lines and rendered no bill for through charges, but charged a flat rate per one hundred pounds irrespective of the character of the goods or their value, or whether the charges of an express company to which it delivered shipments were prepaid or collected from the consignee, it advancing the express charges where they were prepaid and by its bill of lading undertaking to carry shipments to their destination on the line of the express company, the carrier is not a mere agent of the shipper but is the initial carrier within the meaning of the Interstate Commerce Act." 48 [840] 3. Liability for Loss or Injury on Connecting Lines50-a. In Absence of Statute or Special Contract for Through Transportation31—(1) English and Canadian Rule. There has been much discussion by the courts of the question whether, if a carrier receives goods marked to a destination beyond its usual line of transportation so that for the final delivery of the goods at their destination sition Cotton Mills, 81 Ga. 522, 7 SE 916, 2 LRA 102; Nanson v. Jacob, 93 Mo. 331, 6 SW 246, 3 AmSR 531 [aff 12 Mo. A. 125]; Missouri Pac. R. Co. v. Young, 25 Ñebr. 651, 41 NW 646. [a] Thus (1) a mere transfer company employed by the consignee to remove the goods from a station is not a common carrier. Nanson v. Jacob, 93 Mo. 331, 6 SW 246, 3 AmSR 531 [aff 12 Mo. A. 125]. (2) Nor is a transfer company employed by one intermediate carrier to haul the goods to the depot of the next succeeding carrier in the same city. Western, etc., R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 SE 916, 2 LRA 102; Missouri Pac. R. Co. v. Young, 25 Nebr. 651, 41 NW 646. 45. See infra § 839 et seq. 46. See infra § 904 et seq. 47. Knapp v. Minneapolis, etc., R. Co., 33 N. D. 291, 156 NW 1019. 48. Glenlyon Dye Works v. Interstate Express Co., 36 R. I. 558, 91 A 5. 49. See supra § 59. 50. Liability for loss or injury on connecting line in case of deviation see supra § 158. 51. Under special statutory provisions see infra §§ 858-867. 52. Watson v. Ambergate, etc., R. Co., 15 Jur. 448, 3 EngL&Eq 497; Muscamp v. Lancaster, etc., R. Co., 8 M. & W. 421, 151 Reprint 1103. 53. Northern Pac. R. Co. v. Grant, 24 Can. S. C. 546. 54. U. S.-Florida Cent., etc., R. Co. v. U. S., 43 Ct. Cl. 572 (declaring Alabama law). Ala.-Louisville. etc., R. Co. V. Meyer, 78 Ala. 597; Mobile, etc., R. Co. v. Copeland, 63 Ala. 219, 35 AmR 13. Rule changed by statute see infra § 862. Ark.-Chicago, etc.. R. Co. v. Cotton, 87 Ark. 339, 112 SW 742; St. Louis, etc., R. Co. v. Randle, 85 Ark. 127, 107 SW 669; St. Louis South transportation by a connecting carrier will be necessary, the shipper who has actual or presumptive knowledge of the facts is entitled to rely on the acceptance by the first carrier as constituting a contract to deliver the goods at their destination, employing the intermediate carrier as agent for that purpose, or whether, on the other hand, the implied contract is that the first carrier will transport the goods to the end of its usual line, and as agent of the shipper deliver them to an intermediate carrier who thereupon becomes carrier of the shipper to complete the transportation. On the determination of this question will depend the solution of the further question whether the first carrier after transporting the goods to the end of its line and delivering them to a connecting carrier is absolved from liability, or whether its liability as carrier continues until the connecting carrier completes the transportation by delivering the goods at their destination. These questions, which seem to have assumed practical form only since the introduction of transportation by railroad, were decided first by the English courts on the theory that the shipper had a right to assume an undertaking by the carrier, in the absence of any express agreement to the contrary, to deliver the goods at their ultimate destination, and according to what is called the English rule the carrier receiving the goods becomes liable as carrier for the entire transportation.52 The Canadian courts have adopted the English rule.5 53 [§ 841] (2) Rule in America-(a) The Minority Rule. In a number of American states it is held that a common carrier which receives goods consigned to a point beyond the terminus of its own line is liable for loss or injury occurring on a connecting line if it does not by contract limit its liability to loss or injury occurring on its own line." [§ 842] (b) The Majority Rule. In most of the western R. Co. v. Kilberry, 83 Ark. 87, 102 SW 894; Kansas City, etc., R. Co. v. Washington, 74 Ark. 9, 85 SW 406, 109 AmSR 61, 69 LRA 65. Ga. Southern Express Co. V. Palmer, 48 Ga. 85; Cohen v. Southern Express Co., 45 Ga. 148; Mosher v. Southern Express Co., 38 Ga. 37. Special statutory provision see infra § 864. Ill. Illinois Match Co. v. Chicago, etc., R. Co., 250 Ill. 396, 95 NE 492; Atchison, etc., R. Co. v. Peo., 227 Ill. 270, 81 NE 342; Adams Express Co. V. Wilson, 81 Ill. 339; Milwaukee, etc., R. Co. v. Smith, 74 Ill. 197; Chicago, etc., R. Co. v. Montfort, 60 Ill. 175; Illinois Cent. R. Co v. Frankenberg, 54 Ill. 88, 5 AmR 92; Illinois Cent. R. Co. v. Johnson, 34 Ill. 389; Bekins Household Shipping Co. v. Grand Trunk R. System, 162 Ill. A. 497; Mahaffey v. Wisconsin Cent. R. Co., 147 Ill. A. 43: Coats v. Chicago, etc., R. Co., 134 Ill. A. 217; Chicago, etc., R. Co. v. Igo, 130 II. A. 373; Elgin, etc., R. Co. v. Bates Mach. Co., 98 Ill. A. 311, 66 NE 326 [aff 200 I11. 636, 93 AmSR 218]; Lehigh Valley Transp. Co. v. Pillsbury-Washburn Flour Mills Co., 92 Ill. A. 628; Ohio, etc., R. Co. v. Emrich, 24 Ill. A. 245. Iowa. Carter v. Chicago, etc., R. Co., 146 Iowa 201, 125 NW 94; Beard v. St. Louis, etc.. R. Co., 79 Iowa 527, 44 NW 803; Mulligan v. Illinois Cent. R. Co., 36 Iowa 181, 14 AmR 514; Angle v. Mississippi, etc., R. Co., 9 Iowa 487. Oh.-Chesapeake, etc., R. Co. V. Ward Lumber Co., 21 Oh. Cir. Ct. N. S. 337. And see American Roofing Co. v. Memphis, etc., Packet Co., 8 OhS&CP 490, 5 OhNP 146 (where it was said that in Ohio the law seems to treat the obligation of the first carrier as continuing throughout the entire route). Tenn. Memphis, etc., R. Co. V. Stockard, 11 Heisk. 568; Louisville, 54 etc., R. Co. v. Campbell, 7 Heisk. 253; Western, etc., R. Co. v. McElwee, 6 Heisk. 208; East Tennessee, etc., R. Co. v. Rogers, 6 Heisk. 143, 19 AmR 589. Wash.-Allen, etc., Co. v. Canadian Pac. R. Co., 42 Wash. 64, 84 P 620, 70 AnnCas 468 (which contains expressions emphatically approving the English doctrine, although they were perhaps unnecessary to a decision of the case). See also Windmiller v. Northern Pac. R. Co., 52 Wash. 613, 101 P 225 (where it was said that the foregoing case doubtless stated the law as it existed in this state). Wis.-Berger-Crittenden Co. v. Chicago, etc., R. Co., 159 Wis. 256, 150 SW 496 (construing Illinois law). [a] Reason for this view.-(1) "When goods are consigned to a place on his own line of transportation, the known and established duty of a carrier is to deliver them at that place, and to the person who has the right to receive them. A mistake, however innocent, in making delivery, either to the proper person, or at the proper place, involves him in liability. When he accepts goods, directed to a place beyond the line of his route, not limiting his liability, what difference is there in the measure of his duty and liability? To assume that he is a carrier only to the terminus of his own route, and from thence a forwarder, is, as was said by Lord Abinger, in Muscamp v. Lancaster, etc., R. Co., 8 M. & W. 421, 151 Reprint 1103, to assume that the shipper and carrier enter into 'a very elaborate kind of contract; it is, in substance, giving to the carriers a general power along the whole line of route, to make, at their pleasure. fresh contracts, which shall be binding upon the principal who employed them.' Unless the shipper in person attends the goods, and enters into these new contracts, states, and in the federal courts, the English doctrine has been repudiated. Briefly stated, the rule formulated by the decisions of these courts is that, in the absence of any contract, usage, or statute to the contrary, or of any partnership agreement between connecting carriers or joint contract for they are practically unilateral; and it is difficult to believe that any shipper ever intends assenting to a contract with the receiving carrier which involves such consequences. When, without a special contract, he intrusts his property to the receiving carrier, he understands that the duty and obligation of the carrier is to deliver safely at the point of destination. If that be beyond the line of the receiving carrier, he understands that the receiver must have some connection with other carriers, by whose agency the delivery is to be made. With these he has no connection or communication, nor can it be intended that he should have. When there is a failure to deliver, to compel the owner to pass the carrier with whom he contracted, to whom he made delivery, because it may be that there was no default on his part, and search through the entire line of transportation, until he finds the delinquent, seems to us inconsistent with the principles which underlie the whole doctrine upon which are founded the duty and liability of common carriers. As in this case, the line of the receiving carrier may cover but an insignificant part of the entire line of transportation, and before the point of destination is reached, numerous carriers must intervene; to compel the owner to pass the carrier with whom he first dealt, because he was guilty of no delinquency, and travel over the whole line until he finds who of the connecting carriers was in default, is to condemn him to almost certain loss." Mobile, etc., R. Co. v. Copeland, 63 Ala. 219, 222, 35 AmR 13. (2) "The equitable distribution of this money is not within the province of the shipper. He has no way of ascertaining what the contract is between the different connecting lines in relation to their recompense of responsibility, and if his goods are lost or damaged he is relegated to a search across the continent to obtain information as to the responsibility of the different carriers for the damage, information which many cases would be entirely unavailable. He has no way of accompanying the goods to look after them himself; probably would not be allowed to do so, under the transportation rules of the different companies, if he were so inclined. He deals with one company, which accepts his goods, receipts for the same, and contracts to carry them to their destination; and any rule which would throw upon him the difficulties we have suggested would be unnecessary and inequitable." Allen, etc., Co. v. Canadian Pac. R. Co., 42 Wash. 64, 84 P 620, 7 AnnCas 468. in 55. U. S.-Michigan Cent. R. Co. v. Myrick, 107 U. S. 102, 1 SCt 425, 27 L. ed. 325; St. Louis Ins. Co. v. St. Louis, etc., R. Co., 104 U. S. 146, 26 L. ed. 679; Michigan Cent R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. ed. 297; Cincinnati, etc., R. Co. v. Fairbanks, 90 Fed. 467, 33 CCA 611; Stewart v. Terre Haute, etc., R. Co., 3 Fed. 768, 1 McCrary 312; Dixon v. Columbus, etc., R. Co., 7 F. Cas. No. 3.929. 4 Biss. 137. Conn.-Hood v. New York, etc., R. Co., 22 Conn. 1. Del. Klair v. Philadelphia, etc., R. Co., 25 Del. 274, 78 A 1085. Ind.-Pittsburg, etc., R. Co. v. Mitchell, 175 Ind. 196, 91 NE 735, 93 NE 996; Chicago. etc., R. Co. v. Woodward. 164 Ind. 360, 72 NE 558, 73 NE 810; Pittsburgh, etc., R. Co. v. Morton, 61 Ind. 539, 28 AmR 682; U. S. Express Co. v. Rush, 24 Ind. 403; Pittsburg, etc., R. Co. v. Bryant, 36 transportation, the liability of the initial carrier, notwithstanding the fact that the goods are marked to a point beyond its line, terminates when it transports the goods to the end of its line and delivers them to a connecting carrier to be transported to their destination.55 Ind. A. 340, 75 NE 829; Pennsyylvania Ky. Chesapeake, etc., R. Co. v. La.-Vincent v. Yazoo, etc., R. Co., 114 La. 1021, 1027, 38 S 816 [cit Cyc]. Me.-Ross v. Maine Cent. R. Co., 112 Me. 63, 90 A 711; Skinner v. Hall, 60 Me. 477; Perkins v. Portland, etc., R. Co., 47 Me. 573, 74 AmD 507. Md. New York, etc., Transp. Line v. Baer, 118 Md. 73, 84 A 251; Shockley v. Pennsylvania R. Co., 109 Md. 123, 71 A 437; Hoffman v. Cumberland Valley R. Co., 85 Md. 391, 37 A 214; Baltimore, etc., R. Co. V. Schumacher, 29 Md. 168, 96 AmD 510. Mass.-Washburn, etc., Mfg. Co. v. Providence, etc., R. Co., 113 Mass. 490; Burroughs v. Norwich, etc., R. Co., 100 Mass. 26, 1 AmR 78; Nutting v. Connecticut River R. Co., 1 Gray 502; Darling v. Boston, etc., R. Corp., 11 Allen 295; Judson v. Western R. Corp., 4 Allen 520, 81 AmD 718. Mich.-McEacheran V. Michigan Minn.-Ortt v. Minneapolis, etc., Miss. Southern R. Co. v. Vaughn, Mo.-Grover, etc., Sewing Mach. Nebr.-Fremont, etc., R. Co. V. N. H.-Gray v. Jackson, 51 N. H. N. Y.-Jennings v. Grand Trunk R. Co., 127 N. Y. 438, 28 NE 394: Root v. Great Western R. Co., 45 N. Y. 524; Earnest v. Delaware, etc.. R. Co.. 149 App. Div. 330, 134 NYS 323; Hempstead v. New York Cent. R. Co.. 28 Barb. 485; Weil v. Merchants' Despatch Transp. Co., 7 Daly 456; Glazer v. Old Dominion SS. Co., 53 Misc. 290, 103 NYS 112; Soviero v. Westcott Express Co.. 47 Misc. 596, 94 NYS 375; Marmorstein v. Pennsylvania R. Co., 13 Misc. 32, 34 NYS 97: Bisha waiti V. Pennsylvania R. Co., 92 NYS 783; Van Santvoord v. St. John, 6 Hill 157; Ackley v. Kellogg, 8 Cow. 223. Okl.-Missouri, N. C.-Watson v. Atlantic Coast Line R. Co. 145 N. C. 236, 59 SE 55; Meredith v. Seaboard Air Line R. Co., 137 N. C. 478, 483, 50 SE 1 [cit Cyc]; Knott v. Raleigh, etc., R. Co., 98 N. C. 73, 3 SE 735, 2 AmSR 321; Phillips v. North Carolina R. Co., 78 N. C. 294. etc., R. Co. V. Foote, 149 P 223; St. Louis, etc., R. Co. v. Carlile, 35 Okl. 118, 121, 128 P 690 [cit Cyc] (declaring commonlaw rule for interstate shipment); Church v. Atchison, etc., R. Co., 1 Okl. 44, 29 P 530 (declaring commonlaw rule). Decisions under statute declaratory of common-law rule see infra § 865. Or. Taffe v. Oregon R. Co., 41 Or. 64, 67 P 1015, 68 P 732, 58 LRA 187. Pa. Smith v. Illinois Cent. R. Co., 33 Pa. Super. 643; Mullarkey V. Philadelphia, etc., R. Co., 9 Phila. 114. R. I.-Harris v. Grand Trunk R. Co., 15 R. I. 371, 5 A 305; Knight v. Providence, etc., R. Co., 13 R. I. 572, 43 AmR 46. S. C.-Dunbar v. Port Royal, etc., R. Co., 36 S. C. 110, 15 SE 357, 31 AmSR 860; Piedmont Mfg. Co. v. Columbia, etc., R. Co., 19 S. C. 353. Statutory provisions see infra §§ 866, 872. Tex.-Gulf, etc., R. Co. v. Jackson, 99 Tex. 343, 89 SW 968. See infra this note [b]. Vt.-Hadd v. U. S., etc., Express Co., 52 Vt. 335, 36 AmR 757. Va.-Chesapeake, etc., R. Co. v. Stock, 104 Va. 97, 51 SE 161; McConnell v. Norfolk, etc., R. Co.. 86 Va. 248, 9 SE 1006. Special statutory provisions see infra § '874. W. Va.-Roy v. Chesapeake, etc., R. Co., 61 W. Va. 616, 619, 59 SE 39, 31 LRANS 1 and note [cit Cyc]. [a] The fair result of the American cases limits the carrier's liability as such, where no special contract is made, to his own line. Pennsylvania R. Co. v. Jones, 155 U. S. 333, 15 SCt 136, 39 L. ed. 176. [b] In Texas (1) the rule of the text is supported by many decisions. Gulf, etc.. R. Co. v. Jackson, 99 Tex. 343, 89 SW 968; Hunter v. Southern Pac. R. Co., 76 Tex. 195, 13 SW 190; Blackburn v. Chicago, etc., R. Co.. 52 Tex. Civ. A. 443, 115 SW 874; Southern Pac. Co. v. Booth. (Civ. A.) 39 SW 585; Wichita Valley R. Co. v. Swenson, (Civ. A.) 25 SW 47. See also Pecos, etc., R. Co. v. Cox, 105 Tex. 40, 143 SW 606, 157 SW 745 (holding that, where all the shipments of live stock are not interstate shipments, judgment cannot be entered against the initial carrier for the whole amount of damages). (2) But see Texas Cent. R. Co. v. McCall, (Civ. A) 166 SW 925;' Galveston, etc., R. Co. v. Young. (Civ. A.) 148 SW 1113 (both holding apparently without qualification limitation of any sort that, under a special provision of the statutes, the initial carrier is liable for loss or injury occurring on a connecting line). In Galveston, etc., R. Co. v. Young, supra, the court said: "In the act of 1899 (Laws of 1899. p. 214) it is provided that in a suit against any of the connecting lines where freight has been damaged or lost in its transportation over two or more railroads, operating any part of the same in Texas, the damages shall be apportioned among the railroads transporting the same; but that act does not place the burden upon the shipper of proving the damages ac or [§ 843] b. Under Special Contract for Through Transportation-(1) Power of Initial Carrier to Bind Itself. Although by the great weight of authority the common-law liability of a carrier for injury to, or loss of, goods is restricted to its own line, in the absence of contract or statute extending its liability,56 carriers may make valid contracts to transport property beyond their own line, and when they do they are bound to deliver the property at its place of destination according to their contract, cruing on each line. The very ob- 56. See supra § 842. 57. U. S.-Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 SCt 164, 55 L. ed. 167, 31 LRANS 7; Northern Pac. R. Co. v. American Trading Co., 195 U. S. 439, 25 SCt 84, 49 L. ed. 269; Ohio, etc., R. Co. v. McCarthy, 96 U. S. 258, 24 L. ed. 693; Evansville, etc., R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. ed. 724; Ogdensburg, etc.. R. Co. v. Pratt, 22 Wall. 123, 22 L. ed. 827; Michigan Cent. R. Co. V. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. ed. 297; Smeltzer v. R. Co., 158 Fed. 649; Camblos v. Philadelphia, etc., R. Co., 4 F. Cas. No. 2,331, 4 Brewst. (Pa.) 563, 9 Phila. (Pa.) 411; Woodward v. Illinois Cent. R. Co., 30 F. Cas. No. 18,006, 1 Biss. 403. Ala.-Southern R. Co. v. Levy, 144 Ala. 614, 39 S 95; Alabama Great Southern R. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 S 356. R. Ark-St. Louis Southwestern Co. v. Wallace, 90 Ark. 138, 143, 118 SW 412, 22 LRANS 379 and note [eit Cycl; St. Louis, etc., R. Co. v. Randle, 85 Ark. 127, 107 SW 669; St. Louis Southwestern R. Co. V. Kilberry, 83 Ark. 87, 102 SW 894; Kansas City, etc., R. Co. v. Washington, 74 Ark. 9, 85 SW 406, 109 AmSR 61, 69 LRA 65. Cal.-Schwartz v. Panama R. Co., 155 Cal. 742, 103 P 196; Germain Fruit Co. v. California Southern R. Co., 133 Cal. 426, 65 P 948; Colfax Mountain Fruit Co. v. Southern Fac. Co., 118 Cal. 648, 50 P 775, 40 LRA 78; Pereira v. Central Pac. R. Co., 66 Cal. 92, 4 P 988. and are liable for loss or injury occurring after the property has passed over their line and while in the charge of other carriers.57 Under these circumstances, the connecting carrier, receiving the goods for the purpose of transporting them to their destination and delivering them there, becomes the agent of the carrier receiving the goods from the consignor for shipment for the purposes of transportation and delivery." Such contracts are not Co. v. Larned, 103 Ill. 293; Fesser v. Chicago, etc., R. Co., 193 Ill. A. 432; Cleveland, etc., R. Co. v. Bacon, 134 Ill. A. 442; Wabash R. Co. v. Thomas, 122 III. A. 569 [aff 222 I. 337, 78 NE 777, 7 LRANS 1041]; St. Louis Southwestern R. Co. v. Elgin Condensed Milk Co., 74 Ill. A. 619 [aff 175 Ill. 557, 51 NE 911, 67 AmSR 238]; Wabash R. Co. v. Harris, 55 Ill. A. 159. Ind.-Pittsburg, etc., R. Co. V. Mitchell, 175 Ind. 196, 91 NE 735, 93 NE 996, Chicago, etc., R. Co. v. Woodward, 164 Ind. 360, 72 NE 558, 73 NE 810; Cleveland, etc., R. Co. v. Schaefer, 47 Ind. A. 371, 90 NE 502; Cummins v. Dayton, etc., R. Co., 9 Am&Eng RCas 36. Iowa. -Beard v. St. Louis, etc., R. Co., 79 Iowa 527, 44 NW 803; Aiken v. Chicago, etc., R. Co., 68 Iowa 363, 27 NW 281; Robinson v. Merchants' Despatch Transp. Co., 45 Iowa 470. Kan. Atchison, etc., R. Co. V. Roach, 35 Kan. 740, 12 P 93, 57 AmR 199; Atchison, etc., R. Co. v. Fletcher, 35 Kan. 236, 10 P 596. Ky.-Louisville, etc., R. Co. V. Cooper, 56 SW 144, 21 KyL 1644; Ireland v. Mobile, etc., R. Co., 105 Ky. 400, 49 SW 188, 453, 20 KyL 1586; Bryan v. Memphis, etc., R. Co., 11 Bush 597; Louisville, etc., R. Co. v. Foster, 13 KyL 637; Paducah, etc., R. Co. v. Glasscock, 10 Ky. Op. 458. Me.-Ross v. Maine Cent. R. Co., 114 Me. 287, 96 A 223; Ross v. Maine Cent. R. Co., 112 Me. 63, 90 A 711; Perkins v. Portland, etc., R. Co., 47 Me. 573, 74 AmD 507. Mass.-Hill Mfg. Co. v. Boston, etc., R. Corp., 104 Mass. 122, 6 AmR 202. Minn.-Stewart V. Erie, etc.. Transp. Co., 17 Minn. 372. Mo.-Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 SW 965; Wiggins Ferry Co. v. Chicago, etc., R. Co., 73 Mo. 389, 39 AmR 519 [rev 5 Mo. A. 347]; Snider v. Adams Express Co., 63 Mo. 376; Coates v. U. S. Express Co., 45 Mo. 238; Keithley v. Lusk, 190 Mo. A. 458, 177 SW 756; Lord, etc., Co. v. Texas, etc., R. Co., 155 Mo. A. 175, 134 SW 111; Haase, etc., Fish Co. v. Merchants' Despatch Transp. Co., 143 Mo. A. 42, 122 SW 362; Cohen v. Missouri, etc., R. Co., 126 Mo. A. 244, 102 SW 1029; Eckles v. Missouri Pac. R. Co., 112 Mo. A. 240, 87 SW 99; Hendrix v. Wabash R. Co., 107 Mo. A. 127, 80 SW 970; Davis Clothing Co. V. Merchants' Despatch Transp. Co.. 106 Mo. A. 487, 81 SW 226; Eckles v. Missouri Pac. R. Co., 72 Mo. A. 296; Cherry v. Kansas City, etc., R. Co., 61 Mo. A. 303; Moore v. Henry, 18 Mo. A. 35; Loomis v. Wabash, etc., R. Co.. 17 Mo. A. 340; Lesinsky v. Great Western Dispatch Co., 10 Mo. A. 134. Nebr.-Missouri Pac. R. Co. V. Twiss, 35 Nebr. 267, 53 NW 76, 37 AmSR 437. N. H.-Gray v. Jackson, 51 N. H. 9. 12 AmR 1; Nashua Lock Co. v. Worcester, etc., R. Co., 48 N. H. 339, 2 AmR 242. N. J.-Saunders v. Adams Express Co., 78 N. J. L. 441, 443, 74 A 670 [cit Cyc]. Ga.-Graham v. Macon, etc., R. Co., N. Y.-Swift v. Pacific Mail SS. 120 Ga. 757, 49 SE 75; Central R., Co., 106 N. Y. 206, 12 NE 583; Conetc.. Co. v. Georgia Fruit. etc., Exch., 91 Ga. 389, 17 SE 904; Rome R. Co. V. Sullivan, 25 Ga. 228; Atlanta, etc., R. Co. v. Emanuel, 6 Ga. A. 318, 64 SE 1098. Ill-Coats v. Chicago, etc., R. Co., 239 Ill. 154. 87 NE 929; Elgin, etc., R. Co. v. Bates Mach. Co., 200 I11. 636, 66 NE 326, 93 AmSR 218 [aff 98 Ill. A. 311]; St. Louis, etc., R. dict v. Grand Trunk R. Co., 54 N. Y. 500: Root v. Great Western R. Co., 45 N. Y. 524; Burtis v. Buffalo, etc., R. Co., 24 N. Y. 269; Earnest v. Delaware, etc.. R. Co., 149 App. Div. 330, 134 NYS 323; Sabbatino v. Snow's I. S. Sample Express Co., 120 App. Div. 416, 104 NYS 1004; Isham V. Erie R. Co.. 112 App. Div. 612, 98 NYS 609 [aff 191 N. Y. 547 mem, 85 58 NE 1111 mem]; Johnson v. Missouri, etc., R. Co., 107 App. Div. 374, 95 NYS 182; Lyon v. Western New York, etc., R. Co., 88 Hun 27, 34 NYS 532; Schroeder v. Hudson River R. Co., 12 N. Y. Super. 55; Shultz v. Skaneateles R. Co., 66 Misc. 9. 122 NYS 445: Ogdensburg, etc., R. Co. v. Pratt, 49 HowPr 84; Weed v. Saratoga, etc., R. Co., 19 Wend. 534. N. C.-McConnell V. New York Cent., etc., R. Co., 163 N. C. 504, 79 SE 974; Lindley v. Richmond, etc., R. Co., 88 N. C. 547; Phillips v. North Carolina R. Co., 78 N. C. 294. Oh.-Cincinnati. etc., R. Co. v. Pontius, 19 Oh. St. 221, 2 AmR 391. Pa.-Baltimore, etc., Steamboat Co. v. Brown, 54 Pa. 77. Tenn. Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 392, 6 SW 881, 6 AmSR 847; East Tennessee, etc., R. Co. v. Nelson, 1 Coldw. 272; Western, etc., R. Co. v. McElwee, 6 Heisk. 208. Tex.-St. Louis, etc., R. Co. V. Frazer, 43 Tex. Civ. A. 585, 97 SW 325; Texas Cent. R. Co. v. Miller, (Civ. A.) 88 SW 499; Texas, etc.. R. Co. v. McCarty, 29 Tex. Civ. A. 616, 69 SW 229; Gulf, etc., R. Co. V. Leatherwood, 29 Tex. Civ. A. 507, 69 SW 119; Gulf, etc. R. Co. v. Insurance Co. of North America, (Civ. A.) 28 SW 237; Houston, etc.. R. Co. v. Park, 1 Tex. A. Civ. Cas. § 332. Vt.-Newell v. Smith, 49 Vt. 255; Morse v. Brainard, 41 Vt. 550; Noyes v. Rutland, etc., R. Co., 27 Vt. 110. Wash.-Allen, etc., Co. v. Canadian Pac. R. Co., 42 Wash. 64, 84 P 620, 7 AnnCas 468. Eng.-Mytton v. Midland R. Co., 4 H. & N. 615, 157 Reprint 982; Wilby v. West Cornwall R. Co., 2 H. & N. 703, 157 Reprint 290. Can.-Merchants' Despatch Transp. Co. v. Hately, 14 Can, S. C. 572. B. C.-Hamilton v. Hudson's Bay Co., 1 B. C. 176. Ont.-McMillan V. Grand Trunk, etc., R. Co., 12 Ont. 103 [aff 15 Ont. A. 14 (rev on other grounds 16 Can. S. C. 543)]; James v. Dominion Express Co., 9 OntWR 93, 94 [cit Cyc]; Gordon v. Great Western R. Co., 34 U. C. Q. B. 224. [a] Transfer to unsuitable carWhere a carrier takes horses for transportation beyond its own line, and transfers them to an unsuitable car, and they are thereby injured, it is liable for the loss. Eckert V. Pennsylvania R. Co., 211 Pa. 267, 60 A 781, 107 AmSR 571. [b] Suit may be brought against what carrier.-If the contract is for through transportation, action for breach may be brought against the contracting carrier, although the injury or delay is on a connecting line. Missouri Pac. R. Co. v. Twiss, 35 Nebr. 267, 53 NW 76, 37 AmSR 437; Monell v. Northern Cent. R. Co., 67 Barb. (N. Y.) 531. 58. Ark.-St. Louis Southwestern R. Co. v. Gramling, 97 Ark. 353, 133 SW 1129; St. Louis Southwestern R. Co. v. Wallace, 90 Ark. 138, 143, 118 SW 412, 22 LRANS 379 [cit Cyc]. Cal.-Schwartz v. Panama R. Co.. 155 Cal. 742. 103 P 196; Germain Fruit Co. v. California Southern R. Co., 133 Cal. 426, 65 P 948; Colfax Mountain Fruit Co. v. Southern Pac. R. Co., 118 Cal. 648, 50 P 775, 40 LRA 78. Ga.-Southern R. Co. v. Williams, 139 Ga. 357. 77 SE 153. Il-Fesser v. Chicago, etc., R. Co.. 267 Ill. 418, 108 NE 709; St. Louis Southwestern R. Co. v. Elgin Condensed Milk Co.. 74 Ill. A. 619 [aff 175 Ill. 557, 51 NE 911, 67 AmSR 238]. |