Baugh v. McDaniel & Strong

Lochrane, C. J.,

concurring.

The facts of this case have been recited, and I will not repeat them, but confine myself to the question of law involved in the case, remarking that this is an important question upon its legal principles and public policy.

In my opinion the liability of railroads in Georgia is defined by section 2058 of the Code, and nothing but an express contract will enlarge or extend the liability beyond the terminus of the road and delivery to the connecting road. I am not unaware of the construction which may be given to this section of the Code, as deduced from its concluding provisions, that it was intended only to regulate the liability of the connecting roads with each other and define the responsibility of the last road receiving the property, in good order, to the consignee.

After a careful consideration of the law, I am not prepared to give it this limited construction. Its language is: “ When there are several connecting railroads, under different companies, and the goods are intended to be transported over more than one railroad, each company shall be responsible only to its own terminus and until delivery to the connecting road.” This language is plain and unambiguous; “shall be responsible only to its own terminus," has neither qualification nor condition. It speaks the will of the Legislature on the law of railroad liability: “The last company which has received the goods, as in good order, shall be responsible to the consignee for any damage, open or concealed, done to the goods, and such companies shall settle among themselves the ultimate liability.”

This provision and its reasons of justice and convenience’ *650strike me with satisfactory clearness. It specifies the road the consignee may recover against, upon goods damaged, leaving the roads to settle among themselves their respective liabilities. But the first part stands separate and independent, not upon a question of damage done to goods, but the liability of the road generally for loss or damages to the extent of its own line only, and until delivered to the connecting roads.

This is the contract liability fixed by law under the Code; and, except there be a special contract to carry goods beyond the terminus of the road, the liability of the carrier is ended at his terminus by delivering the goods to the connecting road, if intended to go farther.

With the view I entertain of the law I hold that the contract to carry beyond the terminus must be special. It will not be implied. My reason for this opinion is, that the law will not imply a greater liability than it imposes, and, in the absence of any express contract, the lex loci will govern in implications arising upon the construction of contracts under it.

Again, the law of common-carriers is a law based upon public policy of interest and convenienceand, when settled by rule or statutory provisions, presumption will be in favor of conformity therewith, except expressly negatived by the special contract.

Again, railroad corporations will be construed within the limits of their charters. And if the law governing common-carriers is a law based upon public policy, it is a. rule that contracts made by corporations against that policy would be held ultra vires. In 40th Georgia Reports, 624-5, this Court, referring to the aptness to forget the fundamental law, says: They are apt to slide into the notion that a corporation is an individual in all respects so far as business matters are concerned.” New and distinct enterprises not declared in the charter, under a pretence that they are in furtherance of the declared design, involving new risks to its stockholders, and not fairly within the terms of the original *651grant, are forbidden. And covering this question, construing the law governing charters, we lay it down, that the general law of this State applies to them where there is no chartered privilege or grant conflicting, or where it is silent; and that it moves within the sphere of the general law of the land, subject to its provisions and entitled to its protection. In the case before us, I therefore hold, that the contract to carry beyond the terminus of the road, if permitted by the law, and from this permission not ultra vires, will only be held binding where the contract is express. It will not be implied.

This leads me to another view of the case at bar. This action is brought against the Superintendent of the Western and Atlantic Railroad. Under what power could he enter into a special contract to be liable for loss of goods beyond the terminus of the road ? We apprehend if the general law applies to other corporations it applies with more than ordinary power over this enterprise.

It is not necessary to enter into any detailed history of the legislation under which the State road has been governed. The Code defines the powers of the Superintendent, section 975. And in view of the section 2058, defining liability, there is no power granted or given to him to enter into new risks or bind the State for losses over or beyond the line or terminus. It is not there, nor is it incident or essential to his duties as enumerated. Such power will not be implied, in face of the general law: 37 Georgia Reports, 240. For myself, therefore, I hold that the delivery of plaintiff’s cotton at the terminus of the Western and Atlantic Railroad, under the proof in this case, ended the law of liability of the road.

But we hold, under the facts in this case, there was no special contract proven. If A delivers goods to B, a common-carrier, directed to a pointed beyond the terminus of B.’s road, and B receives them and receipts for them under such directions and destination, B is not bound by such a re*652ceipt as a special contract to deliver them at their destination, but fulfils his contract by their delivery at the terminus of his road to the railroad connecting en route. I have considered the cases in England and this country found in the Reports; but feel controlled by the Code of this State in construing the effect of such receipt for destination beyond the terminus. In this case the argument contra is based on the fact that the receipt given was headed through freight contract.” Does this heading authorize the construction of the special contract set up? Was it contracted that the Western and Atlantic Railroad would be liable for the delivery of the goods in New York? The Superintendent swears that it was not. He had,entered into an arrangement with connecting roads for a pro rata of freights as between themselves; and this was the extent of his arrangements. He offered the facility of connecting roads to shippers, but it is not expressly stipulated that he bound his line for the delivery at destination. Could such a construction be contemplated ? Was it actually understood ? Was there any fair opportunity so to believe? Does any man deal with railroads on any such view of their liability in Georgia? Express companies do so contract, and this distinguishes their business from railroads that run only their cars and custodians to their terminus.

When we say the Western and Atlantic Railroad contracted to deliver their cotton to the consignees in New York, and to be liable for its loss, except occasioned by the act of God or the public enemies, how do we arrive at such a conclusion except by presumption based on the common law liability of common-carriers ?

This I hold insufficient. The law of liability governs unless changed by contract liability expressly stipulated. Nowhere can I see enough to change the liability imposed by law, under the Code, and substitute a different liability against the law and the powers of the party to stipulate for greater risk.

*653Again, if this contract be construed under the testimony, if such be held as a special contract, under the law of common-carriers, then the Western and Atlantic Railroad assumed the transportation and risk over other roads without hire; for its pro rata paid only for the transportation to its terminus. Turn this case as we will, we arrive finally at the same conclusion. But, not desiring to swell this opinion beyond the necessary enunciation of the principles and reasons we announce and entertain, we will here close our concurrence with the judgment pronounced by the Court.