PIEDMONT MANUFACTURING CO.

v.

COLUMBIA AND GREENVILLE R. R. Co.

19 South Carolina Reports, 353.

A common carrier is responsible to the full extent of his liability as such, notwithstanding any contract he may make with reference thereto; but one not a common carrier may make any lawful contract which the parties choose.

The true test of a common carrier is: Is it optional with him whether he will carry or not, or is it his legal duty to carry for all alike? If the latter, he is a common carrier; if the former, he is not.

A company chartered and organized for railroad transportation is a common carrier over its own line, but it is not so beyond its termini and over connecting lines unless it has become so by usage, character of business, or contract,

The payment of freight and passenger fare through to points beyond the termini of a railroad does not make it a common carrier over other roads to the point of destination.

The duty or obligation to convey the goods beyond its own line of road, and to deliver them at a point beyond its own line, is not imposed by law, but depends upon the contract between the shipper and the company.

The bill of lading is the contract between the shipper and the company by which the company agrees to transport and deliver beyond its own line, and the terms and conditions of the contract regulate and determine the duties and obligations of the contracting parties.

The signature of the shipper is not necessary to establish his assent to the terms of a bill of lading.

It is the duty of the judge to construe a written contract, but where there is dispute as to which of two agreements the parties acted under, that is an issue of fact which it is the province of the jury to determine.

Letters from the president of a railroad company, written after the destruction of goods by fire, admitting the liability of his company therefor, are not evidence against the corporation in an action brought to recover for such loss.

IN his dissenting opinion Mr. Justice McGowan makes a full statement of the case, as follows:

In the case first named in the title, the plaintiff corporation brought an action against the defendant corporation for $240, the value of three bales of domestics, shipped by the former at their factory in Greenville, upon the railroad of the defendant, to be carried by its own and connecting lines to Baltimore, in the State of Maryland, and there safely delivered to Woodward, Baldwin & Norris, for freight, at the rate of fifty-six cents per one hundred pounds. The allegation was that the defendant corporation did not safely carry and deliver the goods pursuant to agreement, but, on the contrary, the defendant and connecting lines so negligently acted in regard to the same, in their calling as carriers, that said goods were lost and never delivered. The defendant corporation

made several defences: First, they denied the contract as alleged. Second, that there was any negligence on their part, as they delivered the goods to the Charlotte, Columbia and Augusta R. R. at Columbia, and that their liability ended with such delivery. And third, that they received the goods under a special contract, exempting them and all connecting lines from liability for loss by fire, and if there was any liability it should fall only on that line in whose actual custody the property was at the time of the loss; and that the said three bales of domestics were destroyed by fire while in transit, viz.: at West Point, Virginia, on board the steamer Shirley, belonging to the Baltimore, Richmond, and Chesapeake Steamboat Co.

The second case named was for $1600, the value of twenty bales of domestics, shipped at the same time aud under the same circumstances to Woodward, Baldwin & Co., New York. These bales were destroyed at the same time and place and by the same fire, there being no difference in the facts except that the three bales were actually on board the steamer, and the other twenty were on the wharf when destroyed. The cases on the circuit were considered as similar, and the result in one determined the other. It appeared that Mr. Hammet, president of the Piedmont Manufacturing Co.,. wishing to ship his fabrics North, met in Columbia the general freight agent of the Columbia and Greenville R. R., and made with him an arrangement for "through rates" to Baltimore, for which the Piedmont Co. was to pay fifty-six cents per one hundred pounds to Baltimore, and sixty cents per one hundred pounds to New York. At that time nothing whatever was said about limiting the liability of the defendant.

Some time afterwards, November 22d, 1880, under this general arrangement, those having charge at Piedmont (Mr. Hammet was absent from the State) sent three bales of domestics to the Piedmont station on the railroad, and delivered them to one W. B. Vaughn, agent of the railroad company at that point, who gave a printed receipt for the same. This paper was headed "Greenville and Columbia R. R., through bill of lading." It acknowledged the receipt of the three bales, " to be transported by the Greenville and Columbia R. R., to Columbia, Greenville, or Seneca City, as the case may be, and thence by connecting lines-same to be delivered in like order and condition-to Woodward, Baldwin & Norris, Baltimore, Maryland."

This paper was not signed by the shipper, but contained in small type "conditions," declaring the railroad companies exempt from liability in many cases stated at length, and among other things as follows: "That the said Greenville and Columbia R. R. and connecting railroads and steamship lines shall not be liable for loss or damage on any article of property whatever, by fire or other casu

alty while in transit or while in depot, or in other places of shipment or trans-shipment, or at depots and landings at points of shipment and delivery. . And it is further stipulated and agreed, that, in case of any loss, detriment, or damages done or to be sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred by the terins of this contract, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of happening of such loss, detriment, or damage; and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods, etc. In witness whereof the agent hath affirmed to one bill of lading, all this tenor and date, one of which being accomplished the others to stand void. ·

(Signed,)

W. B. VAUGHN, For agent."

A similar receipt was given on the shipment of the twenty bales to New York.

It appeared that the property in its transportation had reached West Point, Virginia, where it was placed on board the steamer Shirley, to be forwarded to Baltimore, but, before the steamer left the wharf, it, with everything on board, was consumed by fire, on the night of November 28th, 1880. At the same time the twenty bales were burnt on the wharf. The fire originated about one o'clock at night, and consumed not only the steamer, but all the wharves and property thereon. The cause of the fire was unknown, and no evidence was offered as to whose fault it was, or whether it occurred from negligence. Some correspondence was had upon the subject of liability for the loss with Mr. R. L. McCaughrin, then president of the Columbia and Greenville R. R. Co., who thought the claim ought to be paid, but desired the plaintiff to sue, as "it was necessary to have a judgment determining the liability in order to fasten the loss upon the insurance companies and on the parties responsible to us," etc. These letters, against the objection of the defendant, were received in evidenc..

The charge of the judge was as follows:

On the 22d November, 1880, Mr. Hammet, the president of the Piedmont Manufacturing Co., shipped twenty bales of drills, at Piedmont, to be delivered to Woodward & Co., New York, worth $1600. He says: "Our agreement for shipments, through rates, was made with the general agent in Columbia. We were to pay sixty cents per hundred pounds to New York. There was no contract as to limiting the liability of defendant. No allusion was made as to such limitation. We were not insured, and did not know of the fire. I was in New England at the time, and did not learn of it until after my return to the State. When I learned of the loss, I wrote Mr. McCaughrin, the president of the Columbia and

Greenville R. R. Co., who, while acknowledging the justice of the claim, requested me, after several letters had passed, to bring this friendly suit' to fix the liability. I gave no instructions on what line to ship the goods. The Greenville and Columbia R. R. were shipping by three routes. My contract was made with agent of defendant. Signed no release. West Point is on the Piedmont Air Line. The bill of lading was signed by Vaughn. The Charlotte, Columbia, and Augusta R. R. receipted for the goods at Columbia. They were burned at West Point, Virginia.

The receipt given by Vaughn, the agent, is the subject of this litigation. It is dated 22d November, 1880, headed Greenville and Columbia R. R., "through bill of lading." It purports to have received of the Piedmont Manufacturing Co. certain packages, "to be transported by the Greenville and Columbia R. R. to Columbia, Greenville, or Seneca City, as the case may be, and thence by connecting lines; same to be delivered in like order and condition to Woodward, Baldwin & Co., New York." Then follows a description of the goods in writing and printing in distinct type and letters; also, a "Release," in fine type, which is not signed by the shipper. Then follow the "Conditions," also in fine type; the whole paper, at the end of the conditions, is signed by W. B. Vaughn, Freight Agent."

The question is: Who is liable to this plaintiff-the defendant or some of the connecting lines? Undoubtedly, Mr. McCaughrin, the president of the Greenville and Columbia R. R., held his company liable. His correspondence shows that. With perfect frankness and fairness he admits the liability of his company in the first instance. But finding there was some difficulty about the insurance, under the advice of counsel he requested this suit to be brought to fix the liability. I do not clearly see, if he thought his company was liable, why this should be desired, but suppose, as a prudent man, he thought it better to act under the advice of counsel rather than to follow the dictates of his own judgment as to whom the responsibility first attached. Hence this suit.

Now the question presented to you is, What was the contract? Was it the contract made by the president of the Piedmont Co. and the general agent of the Greenville and Columbia R. R. in Columbia, or this paper signed by Vaughn? When the goods reached Piedmont station was a new contract made, or did Vaughn sign that bill of lading, to carry out the contract made with the general agent? Mr. Hammet was not there; he did not sign the paper. and expressly says the goods were shipped under the contract made in Columbia, in which there was not a word said about limiting the liability. You will observe this bill of lading is a "through bill," in which the Greenville and Columbia R. R. agree to transport by connecting lines and deliver to

Woodward, Baldwin & Co., New York, the goods lost. Is not that the very contract Mr. Hammet made with the general agent in Columbia? What right had he to alter the terms of that contract, at Piedmont, and attach a release and conditions? None in the world that I can see. There is no proof on that subject, and I regard that bill of lading simply as a receipt to carry out the agreement previously entered into between Mr. Hammet and the general agent of the defendants.

It does not seem unreasonable to hold, that when a shipper entrusts his goods to a common carrier, who stipulates that he will deliver them by connecting line in New York, that he is discharged from liability when he delivers them to the first connecting road on the line of connection. The shipper has made no contract, sent no freights to any other line on the route.

This "through" line, north and east, south and west, was not made for his convenience, but for the benefit of the common carriers comprising the line. It is true, it is a convenience to the shipper; but if, when he makes a contract with the Greenville and Columbia Railroad, he is to place his goods to the Charlotte, Columbia and Augusta Railroad and all the other lines of connection, and can only hold that line liable on which the goods were lost, and with which he made no contract, it has to me very much the appearance of a snare.

Evidently Mr. Hammet thought that when he made his agreement with the general agent to have his goods transported on the connecting lines he represented north and east, west and south, at a stipulated rate of freight which they were to divide, he had a binding contract with the initial road with whom he made the contract, and that the initial road of the connection could not shift its responsibility by any device of releases or conditions in consequence, signed by a local agent at a local station. Is it reasonable, nay, is it just to make the shipper look to any other company than the company with whom he has made the contract? Is it fair, after he has made a contract with the general agent of the combination, in which there was no stipulation whatever, to hold him bound by a printed form, filled with limitations and stipulations, signed by a local agent, to which the shipper has not given his assent by attaching his signature? In all probability, if he went to any other company than the one with whom he made the contract, he would be told, "We made no contract with you; go to the company with whom you contracted."

This war between common carriers and shippers has been going on from time immemorial. Every device that the ingenuity of man can suggest has been adopted to avoid and shift their responsibility. Since the introduction of railroads, so great is their influence that some States have been induced to change the Eng