Vol. IV.]

NEW BEDFORD RAILROAD Co. v. OLD COLONY RAILROAD Co.

[No. 3.

This action is to recover damages for a tortious act of the Middleborough and Taunton Railroad Corporation, for which it was liable previously to the time of the purchase; and the questions raised by the demurrer are, whether the defendant is liable for that act, and, if so, whether an action can be maintained directly against it, or must be first brought against the other corporation.

The answer to these questions depends upon the intention of the legis lature to be deduced from the terms of the statute and the manifest purpose of the act. The language is broad enough to place the defendant in all respects in the position of the other corporation, upon the conveyance and assignment provided for. It is equivalent to an amalgamation of the two; all the franchises, privileges, and powers are transferred, without reservation; not merely the franchise to own and manage a railroad, but the franchise of being a body politic, with rights of succession, of acquiring, holding, and conveying property, and of suing and being sued by its corporate name. It puts out of the reach of creditors all property liable to attachment to satisfy claims, either in contract or tort. It practically terminates the corporate existence of the selling corporation, except, perhaps, so far as such existence may be necessary in order to hold and distribute the consideration received for the sale, or to meet the requirements of the statute which prolongs the life of all corporations for three years after dissolution, for the purpose of enabling them to close their concerns. Gen. Sts. c. 68, § 36. It operates as a dissolution of the corporation by force of the statute and of the assent manifested by the sale. Lauman v. Lebanon Valley Railroad, 30 Penn. St. 42.

In view of these results, it would be a narrow construction to hold that when the statute subjects the purchasing corporation "to all the duties, liabilities, obligations, and restrictions" of the other, it only intended to impose those obligations which the corporation owed the public under its charter and the laws of the commonwealth, and that the property transferred was only that by which it served the public in the exercise of its franchise. In the absence of express provision, it cannot be inferred that it was the intention of the act to impair claims of third parties for existing liabilities, or to shorten the time within which the remedy must be pursued. The question is not whether the statute compels the creditor to accept the defendant corporation as a new debtor against his will, or an injured person to resort to a stranger for satisfaction, but whether it empowers the creditor or the person injured to resort, if he chooses, in the first instance, to the corporation, which, by the terms of the statute, is made liable to him. And we are of opinion that it does, and that the privity necessary to support this action is created by the statute and the purchase and conveyance under it. Demurrer overruled.

Vol. IV.]

BANK OF KENTUCKY. ADAMS EXPRESS Co.

[No. 3.

SUPREME COURT OF THE UNITED STATES.

[OCTOBER TERM, 1876.] ·

EXPRESS COMPANY. - NEGLIGENCE OF RAILROAD COMPANY TRANSPORTING GOODS FOR. - RELATION OF EXPRESS COMPANY AND RAILROAD COMPANY.

PRESIDENT, ETC. OF THE BANK OF KENTUCKY v. ADAMS EXPRESS CO. PLANTERS' NATIONAL BANK v. SAME.

1. While a common carrier may restrict by contract his liability in matters not inconsistent with public policy, he cannot legally contract against liability for the negligence of himself, his agents, or servants.

2. A railroad company which provides a place for, and carries on its trains messengers of an express company, becomes the agent of the express company, notwithstanding the servants of the railroad company are not under the control of the express company.

3. A common carrier has no power to constitute another person or corporation the agent of his consignor or consignee. He can only employ a subordinate agency.

4. A stipulation that an express company will not be liable for the loss of a package by fire does not relieve the company from liability for loss by fire caused by the negligence of the railroad company transporting its messenger.

5. While the consignor of the express company may sue the railroad company for the loss of packages by its negligence, such right comes through the contract between the express and railroad companies.

6. As to whether a railroad company is liable, as a common carrier, to an express company when the latter by its messenger retains the custody of the package, Quere.

THE opinion of the court below will be found in 1 Am. L. T. R. N. S. at page 451.

The opinion of the court was delivered by Mr. Justice STRONG.

The defendants in each of these cases are an express company engaged in the business of carrying for hire, money, goods, and parcels from one locality to another. In the transaction of their business they employ the railroads, steamboats, and other public conveyances of the country. These conveyances are not owned by them, nor are they subject to their control any more than they are to the control of other transporters or passengers. The packages intrusted to their care are at all times, while on these public conveyances, in the charge of one of their own messengers or agents. In conducting their business they are associated with another express company called the Southern, and the two companies are engaged in carrying by rail through Louisiana and Mississippi, to Humboldt, Tennessee, and thence over the Louisville and Nashville Railroad to Louisville, Kentucky, under a contract by which they divide the compensation for carriage in proportion to the distance the package is transported by them respectively. Between Humboldt and Louisville both companies employ the same messenger, who is exclusively subject to the orders of the Southern Express Company when south of the northern boundary of Tennessee, and to the orders of the defendants when north of that boundary.

Such being the business and occupation of the defendants, they are to

Vol. IV.]

BANK OF KENTUCKY V. ADAMS EXPRESS CO.

[No. 3.

be regarded as common carriers, and in the absence of stipulations to the contrary, subject to all the legal responsibilities of such carriers.

On the 26th day of July, 1869, the Southern Express Company received from the Louisiana National Bank at New Orleans, two packages, one containing $13,528.15, for delivery to the Bank of Kentucky, Louisville, and the other containing $3,000, for delivery to the Planters' National Bank of Louisville, at Louisville. The money belonged to the banks respectively to which the packages were sent. When the packages were thus received, the agent of the Southern Express Company gave a receipt or domestic bill of lading for each, of which the following is a copy (the two differing only in the description of the consignees and in the amount of money mentioned):

"Domestic Bill of Lading.

"SOUTHERN EXPRESS COMPANY, EXPRESS FORWARDERS. "No. 2. $13,528.15.

July 26, 1869.

"Received from Lou. Nat. Bank, one package, sealed, and said to contain thirteen thousand five hundred and twenty-eight dollars and fifteen

cents.

"Addressed Bank of Kentucky, Louisville, Ky. Freight coll."

"Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and then to deliver the same to other parties to complete the transportation, such delivery to terminate all liability of this company for such package; and also that this company are not to be liable in any manner or to any extent for any loss, danger, or detention of such package, or its contents, or of any portion thereof occasioned by the acts of God, or by any person or persons acting or claiming to act in any military or other capacity in hostility to the goverument of the United States, or occasioned by civil or military authority, or by the acts of any armed or other mob or riotous assemblage, piracy, or the dangers incident to a time of war, nor when occasioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam. The shipper and owner hereby severally agree that all the stipulations and conditions in this receipt shall extend to and enure to the benefit of each and every company or person to whom the Southern Express Company may intrust or deliver the above described property for transportation, and shall define and limit the liability therefor of such other companies or person.. In no event is this company to be liable for a greater sum than that above mentioned, nor shall it be liable for any such loss, unless the claim therefor shall be made in writing, at this office, within thirty days from this date, in a statement to which this receipt shall be annexed. Freight coll.

66

"For the company:

"SHACKLEFORD.”

Across the left-hand end of said receipt was the following printed

matter:

"Insured by Southern Express Company for loss occasioned by the public enemy.

For the company

"Insurance, $

to

only except against

The bills of lading were sent to the consignees at Louisville. Having thus received the packages, the Southern Express Company transported them by railroad as far as Humboldt, Tennessee, and there delivered them to the messenger of the defendants (who was also their

Vol. IV.]

BANK OF KENTUCKY V. ADAMS EXPRESS Co.

[No. 3.

messenger) to complete the transportation to Louisville, and to make delivery thereof to the plaintiffs. For that purpose the messenger took charge of them, placing them in an iron safe, and depositing the safe in an apartment of a car set apart for the use of express companies, for transportation to Louisville. Subsequently, while the train to which the car containing the packages was attached was passing over a trestle on the line of the Louisville and Nashville Railroad, and while the packages were in charge of the messenger, the trestle gave way during the night. The train with the express car was thrown from the track, and the car with others caught fire from the locomotive and was burned, together with the

money in the safe. The messenger was rendered insensible by the fall, and he continued so until after the destruction was complete. There was some evidence that some of the timber of the trestle seemed decayed.

Upon this state of facts the learned judge of the circuit court instructed the jury that "if they believed the package was destroyed by fire, as above indicated, without any fault or neglect whatever on behalf of the messenger of defendants, the defendants have brought themselves within the terms of the exceptions in the bill of lading, and are not liable." And again, the court charged: "It is not material to inquire whether the accident resulted from the want of care, or from the negligence of the Louisville and Nashville Railroad Company and its agents, or not." And again: "But when he (the common carrier) has limited his liability so as to make himself responsible for ordinary care only, and the shipper to recover against him is obliged to aver and prove negligence, it must be his negligence, or the negligence of his agents, and not the negligence of persons over whom he has no control. If in his employment he uses the vehicles of others, over which he has no control, and uses reasonable care, that is, such care as ordinarily prudent persons engaged in like business use in selecting the vehicles, and if the loss arises from a cause against which he has stipulated with the shipper, he shall not be liable for the same unless it arises from his want of care, or the want of care of his employees." At the same time the learned judge instructed the jury as follows: "Without, therefore, deciding whether or not the evidence adduced in the case tends to establish any want of reasonable or ordinary care on the part of the Louisville and Nashville Railroad Company, I instruct you that such evidence is irrelevant and incompetent, and that you should disregard it, that is, give no more effect to it than if it had not been adduced.”

These extracts from the charge, to all of which exception was duly taken, exhibit the most important question in these cases, which is, whether the stipulations of the carriers' receipt or bill of lading relieved them from responsibility for the negligence of the railroad company employed by them to complete the carriage. The circuit court was of opinion, as we have seen, that they did, and practically instructed the jury that under the modified contract of bailment the defendants were liable for loss by fire only to the extent to which mere bailees for hire, not common carriers, are liable; that is, that they were responsible only for the want of ordinary care exercised by themselves or those who were under their control. With this we cannot concur, though we are not unmindful of the ability with which the learned judge has defended his opinion.

We have already remarked, the defendants were common carriers.

Vol. IV.]

BANK OF KENTUCKY v. ADAMS EXPRESS CO.

[No. 3.

They were not the less such because they had stipulated for a more restricted liability than would have been theirs had their receipt contained only a contract to carry and deliver. What they were is to be determined by the nature of their business, not by the contract they made respecting the liabilities which should attend it. Having taken up the occupation, its fixed legal character could not be thrown off by any declaration or stipulation that they should not be considered such carriers.

The duty of a common carrier is to transport and deliver safely. He is made by law an insurer against all failure to perform this duty, except such failure as may be caused by the public enemy or by what is denominated the act of God. By special contract with his employers, he may, it is true, to some extent, be excused, if the limitations to his responsibility stipulated for are, in the judgment of the law, reasonable, and not inconsistent with sound public policy. It is agreed, however, he cannot by any contract with his customers relieve himself from responsibility for his own negligence or that of his servants, and this because such a contract is unreasonable and contrary to legal policy. So much has been finally determined in Railroad Company v. Lockwood, 17 Wall. 357. But can he by a contract made with those who intrust property to him for carriage and delivery, a contract made at the time he receives the property, secure to himself exemption from responsibility for consequences of the negligence of a railroad company or its agents not owned or controlled by him, but which he employs in the transportation? This question is not answered in the Lockwood case. It is raised here, or rather the question is presented, whether a common carrier does relieve himself from the consequences of such negligence by a stipulation that he shall not be liable for losses by fire.

The exception or restriction to the common law liability introduced into the bills of lading given by the defendants, so far as it is necessary to consider it, is "that the express company are not to be liable in any manner or to any extent for any loss or damage or detention of such package or its contents, or of any portion thereof, occasioned by fire." The language is very broad, but it must be construed reasonably, and, if possible, consistently with the law. It is not to be presumed the parties intended to make a contract which the law does not allow. If construed literally, the exception extends to all loss by fire, no matter how occasioned, whether occurring accidentally or caused by the culpable negligence of the carriers or their servants, and even to all losses by fire caused by wilful acts of the carriers themselves. That it can be operative to such an extent is not claimed. Nor is it insisted that the stipulation, though assented to by the shippers, can protect the defendants against responsibility for failure to deliver the packages according to their engagement, when such failure has been caused by their own misconduct or that of their servants or agents. But the circuit court ruled the exception did extend to negligence beyond the carriers' own, and that of the servants and agents appointed by them and under their control; that it extended to losses by fire resulting from the carelessness of a railroad company employed by them in the service which they undertook, to carry the packages; and the reason assigned for the ruling was that the railroad company and its employees were not under the control of the defendants.