New York & Baltimore Transportation Line & Southern Pacific Co. v. Lewis Baer & Co.

Pattison, J., delivered the opinion of the Court. The amended declaration in this case alleges in the first count thereof that on or about the 15th day of June, 1909, the appellants, defendants below, as common carriers, “received and accepted certain freight, to wit: a large quantity of wool in bags, the aggregate weight of which was approximately eight thousand pounds, for delivery' to the plaintiffs, at Baltimore, Md., for which said defendants received the compensation charged by them, which was predicated upon the weight, of said shipment; that when said shipment ivas delivered by tbe defendants to the plaintiffs. ⁷⁶ the same was in had condition, the said shipment was approximately -225 pounds less in weight than the weight of the shipment received by said defendants for delivery to these plaintiffs as aforesaid; that the condition of said wool, and the shortage thereof, was'due to the recklessness, carelessness "and negligence, on the part of said defendants, and each of them * * * in the transportation of said wool, and was caused by the lack of 'due care and caution on the part of said defendants, and each of them, * * * in the transportation of said wool from the point of its shipment to its destination, and by reason thereof, said plaintiffs have suffered great loss and damage.” ■ ' The second and third counts, the only remaining counts of the declaration, are brought to recover damages for further losses alleged to have been suffered by the plaintiffs in the transportation of other wool received by the defendants on Tune 17th and 18th, 1909, respectively. The language of these counts is in every other respect identical with that of the first. To this declaration the defendants pleaded that “they did not commit the wrongs therein alleged,” and upon joinder of issues the case was tried by jury and a verdict was rendered in favor of the plaintiff for the sum of $216.02.

In the course of the trial ten exceptions were taken to the rulings of the Court upon the admission of evidence, and one to the rulings upon the prayers.. The evidence discloses that the wool mentioned in the first count, of the declaration, consisting of one hundred and one. sacks, was shipped from Buma, Texas, over the Gulf, Colorado and Santa Ee Railway and by it a bill of lading was issued to the shipper, J. W. Pavell, in which Wm. E. Voelkel & Son, New Orleans, La., were named as the consignees. We also' find from the evidence that a bill of lading was likewise issued for this same shipment of wool by the Morgans’ Louisiana and Texas Railroad and Steamship Company, wherein the consignee is- Lewis Baer & Co., ⁷⁷ Baltimore, Md. The authority of this seems to be found in the following order: “Me.

Hammond : Please direct this shipt. via. Morgan Line to Lewis Baer & Co., Baltimore, Md. ¥m. E. Voelkel & Son.” ‘There is no evidence in the record explicitly showing the reason or necessity for the existence of the two bills of lading. The wool mentioned in the second and third counts of the declaration, one shipment consisting of seventy-eight and the other of one hundred and twelve sacks of wool, was shipped over the Kansas City Southern Railway on June 17th and 18th, respectively, the lot of seventy-eight sacks from Singer, La., and the lot of one hundred and twelve sacks from Leesburg, La., and bills of lading were issued by said company as of the dates of shipment to Charles J. Davis, in both of which Wm.

E. Voelkel & Son, Baltimore, Md., were consignees, butt on the back of each of these hills of lading was found this endorsement: “Wm. E. Voelkel & Son, deliver to Lewis Baer & Co.” These three shipments of wool upon reaching Yew Orleans were loaded upon the steamship El Alba, of the Southern Pacific Company, one of the defendants to this suit, and were by said steamer carried to- Yew York, from which point they were transported over the lines of the Yew York and Baltimore Transportation Company, the other defendant to this suit, to Baltimore City, the ppint of destination. The wool after reaching Baltimore City was taken from the steamer of the last named company and loaded in a scow and from the scow was delivered to the plaintiffs. At the time of its delivery the plaintiffs state that many of the sacks were torn and in bad condition and much of the wool was loose in the scow, and by reason of the condition of the sacks it was impossible for tbem to distinguish one lot or shipment from another, and thus the whole of it, without attempting to separate it, was hauled to the plaintiffs’ place ⁷⁸ of business, at wbicb place all of it was weighed by them and was found, as the plaintiffs allege, to be much less in weight than when received by the defendants to be delivered to them.

It is for this shortage of weight 'that this suit was instituted. It is true, the declaration alleges that “the shipment was delivered in bad condition,” and <tbat the “condition of said wool” was due to the negligence of the defendants. Erom this i-t might appear that the plaintiffs were attempting to recover for losses owing h> a damaged condition of the wool delivered, as well as the failure of the defendants to deliver to the plaintiffs all of the wool that they claim should have been delivered to them, yet the record discloses no effort made on the part of the plaintiffs to show that the wool actually delivered! was in a damaged condition, but it discloses that the “bad condition” referred to, was in respect to the sacks or bags in which it was packed; and does not disclose that the wool so delivered to them was in a damaged condition. In none of the shipments of wool was either of the defendants the initial carrier, and in none of them was the Southern Pacific Company the terminal carrier, but the New York and Baltimore Transportation Line was the terminal carrier in all of them.

As neither of the defendants is the initial carrier, they are not in this case in any wise affected by the Act of Congress called the Hepburn Act with the amendment thereto known as the Carmack Amendment, and are, therefore subject only to the liability imposed upon them by the common law. We will therefore inquire, what is this liability ? In the case of Michigan Central Railroad Co. v. Myrick, 107 U. S. 107 , the Court said: “A railroad company is a carrier of goods for the public and as such is bound to carry safely whatever goods are entrusted to it for transportation in the course of business to the end of its road and to deposit them in a suitable place for their owners' or consignees. Tf the road of the company connects with other roads and goods are received for transportation beyond the termination of its ⁷⁹ own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line, that is, to deliver safely the goods to such line, the next carrier on the route beyond.

This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment, there must be a special agreement for it. Each road, confining itself to its common law liability, is only bound, in the absence of special contract, to safely carry over its own road and safely deliver to the next connecting carrier.” This is the established law in Maryland as well as in other parts of the country.

Shockley v. Penn. R. R. Co., 109 Md. 128 ; Hoffman v. Cumberland R. Co., 85 Md. 392 . And this is true .as to an intermediate carrier that accepts property for carriage directed to a place beyond the terminus of its route. Another principle of law, well established in this State, is: “Where goods are transported by two or more successive carriers, it is the prevailing doctrine in this country, that if it be shown that the goods were delivered to the initial carrier in good condition, and they were subsequently delivered to the consignee by the connecting and terminal carrier in bad condition, the presumption of law is, when such last named carrier is made defendant, that the goods were received by such defendant in the same condition that they were delivered to the initial carrier, and the burden is upon the defendant carrier, of proving that such goods came to its possession in a damaged condition, by way of defense.” P. B. & W. R. R. Co. v. Diffendal, 109 Md. 505 ; Laughlin v. C. & N. W. Ry.

Co. 28 Wis. 204 ; Savannah, etc., Ry. Co. v. Harris, 26 Fla. 148 ; Penn. R. R. v. Naive, 112 Tenn. 239 ( 79 S. W. 130 ); Beard v. Ill. Central, 79 Iowa, 518 (7 L. R. A. 280); Cane Hill & Co. v. San Antonia, 95 S. W. R. 751; Elliott on Railroads, sec. 1450; 3 Hutchinson on Carriers, sec. 1348. ⁸⁰ What is said in the case of P. B. & W. R. R. Co. v. Diffendal as to the presumption of law in respect to the terminal carrier, when it is once shown that the goods were delivered to the initial carrier in good condition, applies also as to the quantity so delivered to such carrier.

That is to say, if upon the delivery to the consignee by the terminal carrier, there is found a shortage in the quantity of goods that had been delivered to the initial carrier, the presumption is, when such last named carrier is made defendant, that all the goods delivered to the initial carrier were received by the terminal carrier, and the burden is upon such terminal carrier of proving that the goods so delivered by it to the consignee were all the goods that came into its possession. With this statement of the law we will proceed to give a statement of the facts as disclosed, by the evidence found in the record. As was said, the bills of lading were issued in each of the shipments of wool heretofore mentioned. The bills of lading for the shipment from Buma, Texas, issued by the Morgans’ Louisiana and Texas Railroad and Steamship Company and the Gulf, Colorado & Santa Ee Ry.

Co., both give the number of sacks at one hundred and one and the weight of the wool at 8235 pounds. The bill of lading for the wool shipped from Singer, La., dated June 17th, 1909, issued by the Kansas City Southern Ry. Co., gives the number of .sacks at seventy-eight and the weight of the wool at 9234 pounds; and the bill of lading for the wool shipped from Leesburg, La., June 18th, 1909, issued by the last named railway company, gives the number of sacks at one hundred and twelve and the weight of the wool at 6098 pounds, making the total amount of wool in the three shipments 23,657 pounds, as disclosed by the bills of lading. The bills of lading, among other provisions, contain the following: (1) Yo carrier or party in possession of any of the property herein, described shall be liable for any loss thereof or damage thereto caused by the act or default of the shipper or owner, or for difference in the weight of ⁸¹ grain, seed or other commodities caused by natural shrinkage; (2) all property shall be subject to necssary cooperage and baling at owner’s cost; and (3) no carrier shall be liable for loss, damage or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier.” The latter provision is in entire harmony with the common law liability imposed upon the carrier, and in no sense limits its liability thereunder.

In addition to the bills of lading, the plaintiffs offered the deposition, taken at Lew Orleans, of Charles J. Davis, wool buyer for Wm. E. Voelkel & Son, Baltimore, Md., and the party named in the bills of lading issued by the'Kansas City Southern Ey. Co., at Singer, La., June lYth, 1909, and at Leesburg, La., June 18th, 3909, in which deposition he was asked: “What was the condition of said shipments and bags or sacks in which the shipments were made at the time of delivery of said shipments to the carrier?” To which he replied, “In good commercial condition.” This question and answer were each objected to, and the objections being overruled, exceptions were noted, the same being the first and second bills of exceptions. Ho was then asked: “What was the weight of each of said shipments and by whom were said shipments weighed?” He replied: “The weights are shown on the invoice; they were weighed by myself and the owner of the wool in connection with the railroad receiving clerk.

I attach hereto a copy of both shipments as weighed and marked them P-1 and P-2.” The question and answer were each objected to, and the objections being overruled, exceptions were noted, the same being the third and fourth bills of exceptions. The deposition of Wm. E. Voelkel, Jr., also' taken at Lew Orleans, La., was next offered in evidence. He testified that he was the proprietor of the business conducted by the firm of Wm.

E. Voelkel & Son, and the consignee named in the two bills of lading referred to in the deposition of Davis, and was also the Wm. E. Voelkel named in a bill of ⁸² lading dated June 12th, 1909, issued by (the Morgans’ Louisiana & 'Texas Railroad and Steamship Oo., a,t Buma, Texas, wherein Lewis Baer & Co., of Baltimore, are named as consignees, for one hundred and one sacks of wool, and when asked “What was the condition of said shipments and the bags or sacks in which said shipments were made at the time of delivery of said shipments to the carrier,” he replied: “In a good, merchantable condition. The shipment was compactly packed, the sacks thoroughly stitched and in good condition of strength for wear and tear.” This question and answer were each objected to and the objections being overruled, exceptions were noted, the same being the fifth and sixth bills of exceptions. The copies of shipments, referred to in Davis’ testimony and marked Exhibits P-1 and P-2, were then offered in evidence.

Objection was made to the admission of these exhibits, but the objection was overruled and exception noted, forming the seventh bill of exceptions. Receipts to the terminal carrier for each shipment were then offered. These receipts showed the number of sacks and the date of delivery, July 7th, 1909, and were signed by the haulers, employees or the members of the firm of Lewis Baer & Oo. The number of sacks receipted for con responds with the number named in the bills of lading.

Upon one of the i-eceipts only was there a memorandum as to the condition of the sacks, and that was the receipt for the lot containing seventy-eight sacks. Upon this receipt was written: “Part of these bags in bad condition, 2 loose pkgs., 1' bag of 50 lbs., 1 bag 39 lbs.” The freight bills were also offered by the plaintiff in which ithe number of sacks appeal’s as in the bills of lading. The weight of one of the shipments, differs from the weight ■ mentioned in the bill of lading. In this one the weight is given as 10,000 lbs., while in the bill of lading the weight given is 9,234 lbs.

This discrepancy, however, was fully . and satisfactorily explained by showing that this enlarged weight was placed so as to get the benefit of carload rates, ⁸³ 10,000 lbs. being the mininram weight entitling the shipper to carload rates. Haulm and Booth, haulers, and Pierson, foreman for Lewis Baer & Co., and Moses Baer and Soiomon Baer, members of the firm of Lewis Baer & Oo., testified