Supreme Court of Canada
Grand Trunk Railway Co. of Canada v. McMillan, (1889) 16 S.C.R. 543
Date: 1889-03-18
The Grand Trunk Railway Company of Canada, (Defendants) Appellants;
and
Robert McMillan (Plaintiff) Respondent.
1888: October 27; 1889: March 18.
Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway Co.—Carriage of goods—Contract for—Carriage beyond terminus of line—Exemption from liability—Construction of contract—Statutory liability—Joint tort feasors—Release to one—Effects of.
Where a railway company undertakes to carry goods to a point beyond the terminus of its own line its contract is for carriage of the goods over the whole transit, and the other companies over whose line they must pass are merely agents of the contracting company for such carriage, and in no privity of contract with the shipper. Bristol & Exeter Railway Co. v. Collins (7 H.L. Cas. 194) followed.
Such a contract being one which a railway company might refuse to enter into, sec. 104 of the Railway Act (R.S.C. c. 109) does not prevent it from restricting its liability for negligence as carriers or otherwise in respect to the goods to be carried after they had left its own line. The decision in Vogel v. G.T.R. Co. (11 Can. S.C.R. 612) does not govern such a contract.
One of the conditions in a contract by the G.T.R. Co. to carry goods from Toronto to Portage la Prairie, Man., a place beyond the terminus of their line, provided that the company “should not be responsible for any loss, mis-delivery, damage or detention that might happen to goods sent by them, if such loss, mis-delivery, damage or detention occurred after said goods arrived at the stations or places on their line nearest to the points or places which they were consigned to, or beyond their said limits.”
Held,—That this condition would not relieve the company from liability for loss or damage occurring during the transit even if such loss occurred beyond the limits of the company’s own line.
Held per Strong and Taschereau JJ., that the loss having occurred after the transit was over, and the goods delivered at Portage la Prairie, and the liability of the company as carriers having ceased, this condition reduced the contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from that time in
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custody of the company on whose line Portage la Prairie was situate, as bailees for the shipper. (Fournier and Gwynne JJ. dissenting.)
Another condition of the contract provided that no claim for damage to, loss of, or detention of goods should be allowed unless notice in writing, with particulars, was given to the station agent at or nearest to the place of delivery within thirty-six hours after delivery of the goods in respect to which the claim was made.
Held,—Per Strong J. that a plea setting up non-compliance with this condition having been demurred to, and the plaintiff not having appealed against a judgment over-ruling the demurrer, the question as to the sufficiency in law of the defence was res judicata.
Held also,—Per Strong J., Gwynne J. contra, that part of the consignment having been lost such notice should have been given in respect to the same within thirty-six hours after the delivery of the goods which arrived safely.
Quaere—In the present state of the law is a release to, or satisfaction from, one of several joint tort-feasors, a bar to an action against the others?
APPEAL from a decision of the Court of Appeal for Ontario, affirming the judgment of the Divisional Court, by which a judgment for the defendants (appellants) at the trial was set aside, and judgment entered for the plaintiff.
This was an action against the Grand Trunk Railway Co. and the Canadian Pacific Railway Co. jointly for damages occasioned by injury to the plaintiff’s goods shipped on the Grand Trunk for carriage from Toronto to Manitoba. The goods were only carried by the Grand Trunk over a portion of the route and by the Canadian Pacific from Winnipeg to the place of consignment, and they were in the actual possession of the latter company when injured.
The damage to the goods was not disputed, but the defendants claimed that they were carried under a special contract, by the terms of which they were relieved from liability. The clauses of the special contract particularly relied on are as follows:—
10. That all goods addressed to consignees at points
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beyond the place at which the company has stations, and respecting which no directions to the contrary shall have been received at those stations, will be forwarded to their destination by public carrier or otherwise, as opportunity may offer, without any claim for delay against the company for want of opportunity to forward them, or they may, at the discretion of the company, be suffered to remain on the company’s premises, or to be placed in shed or warehouse (if there be such convenience for receiving the same), pending communication with the consignees, at the risk of the owners as to damage thereto from any cause whatsoever. But the delivery of the goods by the company will be considered complete, and all responsibility of said company shall cease, when such other carriers shall have received notice that said company is prepared to deliver to them the said goods for further conveyance; and it is expressly declared and agreed, that the said Grand Trunk Railway Company shall not be responsible for any loss, mis-delivery, damage or detention that may happen to goods so sent by them, if such loss, mis-delivery, damage or detention occur after the said goods arrive at said stations, or places on their line nearest to the points or places which they are consigned to, or beyond their said limits.
11. That all property contracted for at a through rate, or otherwise to or from places beyond the line of the Grand Trunk Railway, if shipped by water, shall, while not on the company’s railway, or in their sheds or warehouses, be entirely at the owner’s risk. In case of loss or damage to any goods for which this company or connecting lines may be liable, it is agreed that the company or line so liable shall have the benefit of any insurance effected by or for account of the owner of said goods, and the company so liable shall be subro-
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gated in such rights before any demand shall be made on them.
12. That no claim for damage to, loss of, or detention of any goods for which this company is accountable, shall be allowed unless notice in writing, and the particulars of the claim for said loss, damage or detention, are given to the station freight agent at or nearest to the place of delivery, within thirty-six hours after the goods, in respect of which said claim is made, are delivered.
The Canadian Pacific Railway Company were made defendants to the action and while the proceedings were pending the plaintiff accepted a sum of money in satisfaction of his claim against them which the defendants alleged operated as a release of the whole cause of action and a bar to any further proceedings by the plaintiff in the suit.
The plaintiff gave no notice of claim for loss or damage as required by the 12th condition above set out.
The plaintiff claimed that the goods were not carried on the special contract, but on a verbal agreement, and on the trial the jury so found, the defendants, in their opinion, having failed to prove the delivery and acceptance of the bill of lading from which the above extracts are taken and the release.
The trial judge disregarded the finding of the jury on this point and holding that there was a special contract and that under it the defendants were not liable, gave judgment in their favor.
The divisional court reversed this decision, on the ground that although the goods were carried under the special contract, the defendants were precluded from exonerating themselves from liability under it as held in Vogel v. The Grand Trunk Ry. Co. The Court
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of Appeal affirmed the latter decision, though on different grounds. The defendants then appealed to this court.
McCarthy QC. and Nesbitt for the appellants. The evidence shows that the damage to the goods was covered by the consideration of the special contract. Czech v. General Steam Navigation Co.; mentioned in Coggs v. Bernard; Lewis v. The Great Western Ry. Co.; Webb v. The Great Western Ry. Co.; Phillips v. Clark; Bristol Ry. Co. v. Collins.
Relying on the other clauses of the contract the learned counsel cited Mason v. The Grand Trunk Ry. Co; Moore v. Harris;
As to the action being barred by the release to the C.P. Ry. Co., see Wilcocks v. Howell, where all the cases are collected; Pigott on Torts.
Robinson Q.C. and Galt for the respondent. If there was a special contract, it is no defence as a railway company cannot so protect themselves from liability. Grand Trunk Ry. Co. v. Vogel3; Zunz v. The South Eastern Ry. Co.; Doolan v. The Midland Ry. Co.; Machu v. London & South Western Ry. Co.; Dickson v. The Great Northern Ry. Co..
As to the third condition, the answer is that it does not expressly provide for exempton on account of negligence, which is necessary. The Grand Trunk Ry. Co. v. Fitzgerald; Dixon v. The Richelieu Navigation Co.; Trainor v. The Black Diamond S.S. Co.
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The learned counsel also referred to Oakes v. Turquand; Kent v. The Midland Ry. Co.; The Peter Des Grosse; Peek v. The North Staffordshire Ry. Co.; O’Rorke v. The Great Western Ry. Co.; Hamilton v. The Grand Trunk Ry. Co.; Railroad Company v. Lockwood; Railroad Company v. Manufacturing Co.
McCarthy Q.C. in reply referred to Pontifex v. The Midland Ry. Co.
SIR W.J. RITCHIE C.J.—(His Lordship was absent when judgment was pronounced but sent a memorandum of his conclusion, that the appeal should be allowed with costs, but giving no reasons.)
STRONG J.—The facts material to the present appeal are fully stated in the report of the judgment of Mr. Justice Rose, who tried the action, and of that of the Divisional Court of Queen’s Bench, and also, in the report of the case in appeal and need not be repeated here.
I am of opinion that the appellants are entitled to our judgment.
I do not discuss the question which was principally in controversy at the trial viz: that as to whether the goods were carried on a verbal contract made by John McMillan with some of the clerks or officers of the Grand Trunk Railway Company at their offices in Toronto, or whether they were carried under the written contract produced at the trial. I agree with the court of appeal that for the reasons given by Mr. Justice Burton and Mr. Justice Patterson the document called a shipping bill or bill of lading, partly written
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and partly printed, marked as Exhibit D., was that under which the goods were received to be carried by the appellants, as was held by Mr. Justice Rose at the trial.
The questions we have to decide arise principally on the construction of certain clauses and conditions contained in this instrument; in addition to which we have to determine what effect is to be attributed to the plaintiff’s acceptance pendente lite of $650 from the defendants, the Canadian Pacific Railway Company, in satisfaction and discharge of his claim and right of action against the last named defendants, and of the release executed by the plaintiff in their favor.
The first point which we may consider is that which principally engaged the attention of the Court of Appeal, viz: the effect of the 10th condition
That condition is in the following words:
10. That all goods addressed to consignees at points beyond the places at which the company has stations, and respecting which no directions to the contrary shall have been received at those stations, will be forwarded to their destination by public carrier or otherwise as opportunity may offer, without any claim for delay against the company for want of opportunity to forward them, or they may, at the discretion of the company, be suffered to remain on the company’s premises, or be placed in shed or warehouse (if there be such convenience for receiving the same) pending communications with the consignees, at the risk of the owners as to damage thereto from any cause whatsoever. Bat the delivery of the goods by the company will be considered complete, and all responsibility of said company shall cease, when such other carriers shall have received notice that said company is prepared to deliver to them the said goods for further conveyance, and it is expressly declared and agreed that the said Grand Trunk Railway Company shall not be responsible for any loss, mis-delivery, damage or detention that may happen to goods so sent by them, if such loss, mis-delivery, damage or detention occur after the said goods arrive at said stations or places on their line nearest to the points or places which they are consigned to, or beyond their said limits.
The case of The Bristol & Exeter Railway Co. v.
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Collins is an authority which, as regards the general construction of this condition, applies in the respondent’s favor. Upon the authority of that case we must reject the appellants’ contention that this condition restricts their liability to damage or loss happening on their own line and exonerates them from loss occurring after the goods should have left the line of the Grand Trunk Railway Company and been transferred to the hands of other railway companies over whose lines the transit had to be completed, a liability which the appellants must primâ facie and apart from any condition or special terms in the contract be deemed to have undertaken simply by contracting to carry to McGregor or Portage Station. We must then hold the Grand Trunk Railway Company to have contracted for the carriage of the goods to their ultimate destination of McGregor (for which Portage la Prairie was afterwards substituted), that is for the whole transitus, so far as it could be completed by railway, and the other companies, on whose lines the goods were to be carried after they left the appellant’s own line, must be considered as mere agents of the Grand Trunk Railway Company, between whom and the respondent there was no direct privity of contract. So far, but no further, this case of the Bristol & Exeter Railway Company v Collins32 is no doubt an authority for the respondent.
The Divisional Court of Queen’s Bench held that the construction of the condition to the extent already indicated being thus to carry the whole distance to McGregor, Vogel’s case applied so as to make the restriction contained in the 104th section of the R.S.C. ch. 109 applicable, and thus to incapacitate the Grand Trunk Railway Company from entering into any contract or exacting any condition limiting its liability
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for negligence or omission, and this not merely as regards its own line, over which the same statute imposed upon it the duty of carrying, but also with reference to losses occurring on other lines over which the goods were to be carried by other railway companies acting as agents of the Grand Trunk Railway Company.
I entirely agree with the Court of Appeal that this view was erroneous, and that according to the plain construction of the language of the 104th section, and without any reference to the English authority relied on, which arose upon a statute different in its terms, the prohibition of any limitation of liability therein contained is only co-extensive with the former part of the same section, which imposes upon railway companies the duties and obligations of common carriers. The literal meaning of the words “every person aggrieved by any neglect or refusal in the premises,” it is obvious requires this construction and makes any other impossible. Then these duties and obligations were clearly prescribed in respect of a railway company’s own line, and not with respect to other lines over which it might, if it chose, undertake to forward or carry, but in respect of which services its choice to undertake them or not was free and unaffected by any statutory duty whatever. From this it follows that in so far as the contract of carriage here beyond the terminus of their own line was one which the Grand Trunk Railway Company might have declined altogether, there was no statutory or other legal impediment to a contract by them limiting their liability either as carriers or otherwise in respect of the goods to be carried after they had left that company’s own line.
Next, it is material to enquire whether this 10th con-
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dition does contain any dispensation of liability in favor of the Grand Trunk Railway Company. I have already said that in common with the learned judges of the Court of Appeal, I am of opinion that so far as this condition is identical in its terms with the 10th condition of the receipt note which was in question in Bristol & Exeter Railway Company v. Collins, it has not the effect of restricting the responsibility of the Grand Trunk Railway Company to its own line.
The 10th condition in the present case, however, contains a clause not to be found in that which was under consideration in the case of the Bristol & Exeter Ry. Co. v. Collins35. It is at the end of the condition, and is in these words:
And it is expressly declared and agreed that the said Grand Trunk Railway Company shall not be responsible for any loss, mis-delivery, damage or detention that may happen to the goods so sent by them, if such loss, mis-delivery, damage or detention occur after the said goods arrive at said stations or places on their line nearest to the points or places which they are consigned to or beyond their said limits.
The words “after the said goods arrive at said stations or places nearest to the points or places which they are consigned to,” which we find in the condition before us, but which are not found in that which was in question in the Bristol & Exeter Ry. Co. v. Collins35, are in my opinion most material, and entirely distinguish the bill of lading in the present case from the receipt note which the House of Lords were called on to construe in the case referred to.
Further, in the case of the Bristol & Exeter Ry. Co. v. Collins35 the goods were destroyed whilst in transitu and during the continuance of the carriers’ liability, but in the present case it is contended that the respondent’s goods were not lost or damaged until after completion of the transitus, when the contract for carriage had come to an end, and when the liability of the
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appellants, either as carriers or as bailees, had entirely ceased.
Now in the event which happened, of “Portage Station” being substituted for “McGregor,” the original destination by agreement between the respondent and the station agent of the Canadian Pacific Railway Company at Portage, the station or place on the appellants’ line, on the arrival at which their responsibility was to terminate, according to this condition was undoubtedly that at Portage, for according to the established construction the line of the appellants’ agents, the Canadian Pacific Railway Company must, for the purposes of this condition, be considered as the appellants’ own line. That it was free to the appellants to enter into any contract or to prescribe any condition they might think fit limiting their responsibility as carriers or otherwise beyond their own line has already been demonstrated. It is, therefore, a consequence of this entire freedom of contracting that the Grand Trunk Railway Company might have limited their liability ultra their own line, not only so as to relieve them from all liability from that onerous responsibility which the law has imposed on common carriers as insurers of goods against all losses, except those proceeding from “the act of God or the Queen’s enemies,” or inherent vice in the goods themselves, but further and beyond this, from all losses imputable to the negligence of the appellants’ own agents and servants, the subsidiary railway companies who, as agents for the Grand Trunk Railway Company were to complete the carriage from the terminus of their own line to Portage. To exonerate from liability for the negligence of agents and servants, however, so long as the goods should, in fact, remain in the appellants’ own hands as carriers during the transitus, express terms would have been requisite; and,
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entirely agreeing with what Mr. Justice Patterson has said on this head in connection with the 3rd condition, I do not think the language of this last clause of the 10th condition is sufficient to relieve the appellants from liability for any negligence which may have occurred before the goods arrived at Portage Station, though after they left the appellants’ own line.
Whilst, however, the appellants might thus have contracted themselves out of their primâ facie liability not only as common carriers, but also in respect of negligence, which latter, however, it appears, as just shown, they have not done, they were not confined to this mode of restricting their liability, for it was open to them to limit it another way, viz., as respects time and place, by providing they should not be liable in any way after the goods arrived at a certain point. Thus, for example, there was nothing to prevent them from excluding all responsibility on their part, after the goods should have come into the hands of the Canadian Pacific Railway Company, provided they did it in clear unequivocal terms. This they have not done. But, then, a fortiori there was no legal hindrance to their providing for such a cesser of liability immediately upon the termination of the transitus and when the contract of carriage would, in fact, have been completed. The question is, have the appellants not done this when they stipulate, as they in effect do, that they, “shall not be responsible for any loss, misdelivery, damage or detention that may happen to the goods so sent by them, if such loss, mis-delivery, damage or detention occur after the said goods arrive at Portage Station.”
I read this condition just as if Portage Station had been actually inserted instead of the general description of the terminus in fact contained in the conditions, inasmuch as beyond all doubt Portage Station is by
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agreement of the parties to be considered as the “station or place” on the appellants’ line nearest to “the point or place to which the goods were consigned.”
Then, what meaning must we attribute to this clause? And what was, if any, the extent of the appellants’ liability after the goods arrived at Portage Station, as the evidence shows they did on the 25th of July, 1882.
It is well established by incontrovertible authority that the liability of carriers by railways quâ carriers terminates upon the arrival of the goods carried at their destination and the expiration of a reasonable time afterwards for their delivery. Chapman v. G.W Ry. Co. What is a reasonable time must be determined with a due regard to surrounding circumstances. In the case just cited it was held that the railway company were not liable for goods which had arrived at a station on the 25th March, and were destroyed by fire on the morning of the 27th. What would be a reasonable time would, however, be probably held to vary according to the surrounding circumstances; but, making every allowance for that it is not too much to say that by the 28th July, when the respondent for the first time inquired for the goods the liability of the appellants as carriers would, irrespective of condition or special contract, have ceased, and the goods would then, according to the general law, have been held by the Canadian Pacific Railway Company, acting either as agents for the appellants, the Grand Trunk Railway Company, or in the quality of principals acting on their own behalf, as warehousemen only, and consequently under a responsibility reduced from that of insurers to one of bailees liable only for neglect of duty.
What then, on this, the state of things which would
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have resulted, apart from contract or special condition, was the effect of the provision contained in the latter clause of the 10th condition which I have already set forth? I must unhesitatingly answer that it can only be construed as an express contract between the parties that all liability on the part of the Grand Trunk Railway Company should cease when the goods arrived at their destination and the contract for carriage was thus terminated. It appears to me very clear that when the contracts and agreements of the parties are free from legislative interference it is quite competent for a railway company to stipulate that the extended liability which the common law imposes upon carriers beyond that which ordinary bailees have to bear shall cease contemporaneously with the goods carried being deposited at the station to which they are destined, thus relieving the railway company from that time from all liability, save that of ordinary bailees, viz., a liability for negligence. Then that is precisely what was done in the present case. The agreement is that there shall be no liability for loss, damage or detention after the goods arrive at the station, which in this instance is to be read as Portage Station. This to my mind is as clear as words could express it, to show that the intention of the parties was that there was to be no liability as carriers after the goods arrive at the station. To this it may be answered that there would still remain the liability for negligence as warehousemen. The clause in question has, however, a continuing operation, and not only cuts down the contract of carriage to one of mere bailment so soon as the goods arrive, but also exempts the appellants from liability as warehousemen. The goods must consequently be considered from that date as remaining in the possession and custody of the Canadian Pacific Railway Company.
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Then, as regards the subsequent possession of the Canadian Pacific Railway Company, if it is to be regarded as that of the last named company as agents for the appellants, the only liability it involved was responsibility for negligence. So that, if the clause in question had a continuing operation, as I maintain it had, and as it must have had to give it due effect, there was no liability on which it could operate, save the liability for the negligence of their servants and agents, and consequently it must be taken as exonerating the appellants from any liability whatever as regards the respondent, leaving him, however, to look to the Canadian Pacific Railway Company who, even if not in privity with the respondent, were actual and de facto bailees, and as such bound by an obligation, irrespective of contract, to take care of the goods in their hands.
There is nothing in this construction of the provision in question at variance with Fitzgerald v. Grand Trunk Ry. Co. and cases of that class. There the clause of exemption was not altogether rejected, but in those cases full scope for its operation was afforded by attributing it to an intention to relieve the railway company from the onerous liability of carriers at common law, leaving them liable only for negligence. Here it is impossible to give the clause any operation whatever, unless it is construed as exempting the appellants, who had become mere wharehousemen, from liability for negligence, and as it is impossible to reject altogether a stipulation of this kind which the parties were free to enter into it must receive this interpretation.
Another and, perhaps, more correct way of interpreting this clause and giving it the same practical effect is to consider it as putting an end to all liability on the part of the appellants, either as carriers or ware-
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housemen after the actual arrival of the goods at Portage, in which case the appellants would be considered, as the agents of the respondent, to hand the goods over upon their reaching that point to the Canadian Pacific Railway Company, who would thenceforward have the custody of them as warehousemen and bailees for the respondent.
The result is that so soon as the goods were warehoused at Portage Station, or within a reasonable time thereafter, which reasonable time had elapsed before the respondent called for them, either the appellants ceasing to be liable as carriers held them through their agents the Canada Pacific Railway Company as mere bailees for the respondent, but as bailees exonerated from liability for the negligence of their agents and servants or they ceased from that time to have any possession of the goods at all and thenceforward the possession was in the Canada Pacific Railway Company alone as bailees directly for the respondent, the appellants being in the last case considered as the agents of the respondent to hand the goods over to the other railway company. Either one or the other of these alternative constructions, it matters not which, must be attributed to this 10th condition in order to give due effect to the words in which it is expressed.
Construed in either way, this 10th condition seems to be most reasonable since it relieves the appellants from liability, not in respect of goods in transit, but in respect of goods which might remain for an indefinite time deposited with bailees at a great distance from the appellants, and over whom they could possibly have no control, whilst the respondent would have every security for the safe-keeping of the property which he could reasonably require, and an efficient remedy in the liability which the Canadian Pacific
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Railway Company would incur by the mere receipt of the goods as bailees.
This conclusion, however, would, it is manifest, have no practical result, if it were not that the evidence, or at least a fair inference from it, shows that the loss of a portion of the goods and the damage to the residue occurred not in transitu, but after the arrival at Portage Station. This appears to have been the view of the Court of Appeal, for Mr. Justice Patterson, who delivered the leading judgment there, says:
There is nothing in the evidence to suggest that the goods did not all arrive at Portage, the date being given as the 25th July, and were not all at that time in good order.
And again, at page 26 of the report, the same learned judge says:
The conclusion of fact indicated by this evidence is that the injury occurred and the missing packages were lost during these two months, and no account of the goods is given to rebut that inference. The negligence and resulting injury therefore, happened after the transit was over, and when but for the default of the company, the goods would have been in their possession.
No dissent from these statements was expressed by any other members of the court, and as they entirely accord with the result of my own consideration of the depositions, which I have read several times, I do not hesitate to accept them as correct conclusions of fact.
I am, therefore, of opinion that the motion for judgment made on behalf of the appellants was properly granted by the learned judge who presided at the trial, although the view I take of the 10th condition is not quite the same as his.
Secondly. The 12th condition, independently of any other consideration, appears to me conclusive in favor of the appellants. That condition is in the following words:
12. That no claim for damage to, loss of, or detention of any goods
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for which this company is accountable shall be allowed unless notice in writing, and the particulars of the claim for said loss, damage or detention, are given to the station freight agent at or nearest to the place of delivery, within thirty-six hours after the goods, in respect of which said claim is made, are delivered.
This condition was duly pleaded by the appellants, and this portion of their statement of defence was demurred to as constituting no answer in law. Upon argument, however, the demurrer was over-ruled and the plaintiff was allowed to amend and take issue upon it, which he did by a general denial of its allegations.
The result is, that as regards the sufficiency of this defence as an answer in law to the plaintiff’s demand, that question must be taken as concluded and as res judicata between the parties, the plaintiff not having taken any cross-appeal against the decision or demurrer either here or in the Court of Appeal. Then in point of fact the plaintiff has failed to prove that he gave the notice which this 12th condition required, so that the defence set up by paragraph 4 of the statement of claim is completely sustained both in law and in fact. The wording of this condition is not very accurate. It clearly, however, covers the damage to the packages which were delivered. As regards the claim for loss, I think it also applies to that, as the only sensible construction which can be placed upon it with reference to lost goods is that when goods, part of a consignment, are lost, the notice is to be given thirty-six hours after the delivery of those which arrive safely and are delivered. Unless we are to make a new contract for the parties, I am at a loss to conceive any answer to the defence founded on this condition.
Lastly. The appellants rely on the accord and satisfaction, which took place between the respondent and the Canadian Pacific Railway Company pendente lite, and the release executed by the appellants of all
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causes of action in respect of the loss and damage to the goods in question against the last named company.
Although it appears to me very clear that these two railway companies are sued as joint tort feasors, and that the old law was that a release to, or acceptance of satisfaction from one of several joint tort feasors, was a bar to the action against the others, it has been suggested by text writers that the law in this respect has undergone a change, and that a release of one wrong doer is not now a defence for the others, except in cases when the release or satisfaction is expressly given or accepted in bar of the cause of action against all, which certainly does not appear to have been the case here, the intention being manifestly to release the Canadian Pacific Railway Company only; and although this new doctrine does not seem to me altogether consistent with such cases as King v. Hoare and Brinsmead v. Harrison, cases which have quite recently been approved of by the House of Lords, I do not think it necessary to enter into a fuller consideration of it, as the two first points seem to me quite sufficient to warrant my judgment, which must be for the appellants, thus restoring the judgment pronounced by Mr. Justice Rose at the trial, with costs to the appellants in all the courts.
FOURNIER J.—Was of opinion that the appeal should be dismissed, for the reasons given by Mr. Justice Gwynne.
TASCHEREAU J.—I agree with Mr. Justice Strong, and would allow the appeal, for the reasons stated in his judgment.
GWYNNE J.—This appeal should, in my opinion, be
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dismissed with costs, upon the grounds on which the Court of Appeal for Ontario proceeded. It is unnecessary to allude to the facts of the case, further than to say, that unless the defendants are exempted from liability by reason of the condition endorsed on the shipping bill which was relied upon, there can be no doubt that they are responsible to make good to the plaintiff all damages by him sustained, as well by the unwarrantable delay which occurred in the conveyance and delivery of what was delivered, and by reason of the ruinous condition in which a large portion was, as by the loss of that portion which never was, delivered.
The case of Bristol & Exeter Railway Co. v. Collins, in the House of Lords is, in my judgment, conclusive upon the present case. The Court of Queen’s Bench by their judgment in Zunz v. The South Eastern Railway Co. never intended, even if it had been competent for them, to qualify in any respect the judgment of the House of Lords in the Bristol & Exeter Railway Co. v. Collins43 and the condition relied upon in the present case is less favorable to the support of the exemption from liability relied upon by the defendants than was the condition under consideration in that case, while that upon which Zunz v. S.E. Ry. Co.44 proceeded was framed apparently with the intention of adopting the suggestion made by some of the learned judges in the Bristol & Exeter Ry. Co. v. Collins,43 to the effect that a railway company receiving goods to be conveyed to the place to which they are consigned over another railway, or other railways, extending beyond the line of the receiving company, and wishing to limit their liability to the period of transit upon their own line should frame the condition upon which
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they should rely for exemption from liability while the goods should be in transit upon such other railway in very different language from that used in the condition relied upon in Bristol & Exeter Railway Co., v. Collins and in fact in such language as should be incapable of being misunderstood by any person dealing with a railway company as a common carrier of goods.
The plaintiff’s statement of claim is:—
That he delivered to the G.T.R’y Co.—who were a company doing business as common carriers in Canada and elsewhere, certain goods belonging to the plaintiff, to be safely carried for reward to them in that behalf from the city of Toronto, in the county of York and Province of Ontario to the village of McGregor in the Province of Manitoba, and there to be delivered to the plaintiff within a reasonable time: that the said G.T. Ry. Co. duly received the said goods for the purpose aforesaid, and the plaintiff duly paid them their charges therefor, amounting to $17.20. Yet the said defendants, the said company, did not deliver the said goods to the plaintiff within a reasonable time, nor did they take due and proper care thereof but wholly neglected so to do; and so carelessly, negligently and improperly carried the same and took such bad care thereof, that by their negligence, carelessness and improper conduct in that behalf the said goods were delayed for a long and unreasonable time in transit, and a large portion thereof was greatly damaged and the remainder never delivered at all to the plaintiff.
Now the statement of defence, which sets up the condition which is relied upon as exempting the defendant’s from liability, is as follows:—
The defendants say that the said goods were delivered to them, and they received the same for carriage and delivery upon and subject to the terms of a special contract made by and between the plaintiff and defendants respecting the carriage and delivery thereof; that one of the said conditions was and is, “that all goods addressed to consignees at points beyond the places at which the company has stations, and respecting which no directions to the contrary shall have been received at these stations, will be forwarded to their destination by public carrier or otherwise as opportunity may offer, without any claim for delay against the company for want of opportunity to forward them; or
[Page 564]
they may, at the discretion of the company, be suffered to remain on the company’s premises or be placed in shed or warehouse (if there be such convenience for receiving the same) pending communication with the consignees, at the risk of the owners as to damage thereto from any cause whatsoever. But the delivery of the goods by the company will be considered complete, and all responsibility of the company shall cease when such other carrier shall have received notice that the said company is prepared to deliver to them the said goods for further conveyance; and it is expressly declared and agreed that the said Grand Trunk Railway Company shall not be responsible for any loss, mis-delivery, damage or detention that may happen to goods so sent by them if such loss, mis-delivery, damage or detention occur after said goods arrive at said stations or places on their line nearest to the points or places which they are consigned to, or beyond their said limits.”
The above condition varies little from that in The Bristol & Exeter Ry. v. Collins, from which it appears to have been taken. The only difference, indeed, appears to lie in an alteration in the first sentence which renders obscure what is clearly enough expressed in that under consideration in The Bristol & Exeter Ry. v. Collins46; with this ambiguity, however, we are not at present concerned, and need not dwell upon it; and in omitting a paragraph which is in the latter condition, namely:—
And the company hereby further give notice that any money which may be received by them as payment for the conveyance of goods by other carriers beyond their said limits will be so received only for the convenience of the consignor, for the purpose of being paid to such other carriers, and will not be received as a charge made by the company upon the goods in the capacity of carriers beyond the extent of their own Railway.
It is clear, therefore, that if the condition endorsed on the shipping bill in The Bristol & Exeter Railway Co. v. Collin46 had no application to qualify the contract in that case, although it was a contract for carriage of goods to a point on another railway remote from the terminus of the railway of the contracting company, the condition now under consideration can have no
[Page 565]
application to the contract in the present case, which in all substantial particulars is identical with that in The Bristol & Exeter Railway v. Collins46. By the shipping bill upon which the defendants rely, (I am assuming that the goods were received by them to be carried under that shipping bill), it appears that the contract the defendants entered into was one entire contract to carry the goods the whole distance from Toronto to McGregor station, Manitoba, for one entire sum, which they received as payment in full for such carriage. This shipping bill, with the conditions endorsed thereon, is the form which has always been and still is in use for shipping goods for transit between any two stations upon the Grand Trunk Railway of Canada, which extends from Portland, in the State of Maine, and from Quebec in the east, to Sarnia, in the Province of Ontario, in the west. Since the present contract was entered into the company appears to have adopted a new form for the transit of goods through the United States west of Sarnia; but the contract under consideration was drawn up on a shipping bill then and still in use for the carriage of goods upon the Grand Trunk Railway proper—as above defined. Now, in executing this contract it appears that from Sarnia, in the Province of Ontario, or Fort Gratiot, across the River St. Clair in the State of Michigan, whichever may be said to be the western terminus of the Grand Trunk Railway proper, the company had two routes, being part of what is called the Grand Trunk railway system, by which the goods could have been forwarded as far as Chicago, in the State of Illinois. From Chicago to St. Pauls there were three railway routes by which the goods could have been forwarded; and from St. Paul’s to St. Vincent one; but whether these routes were, or any of them was, part of the Grand Trunk Railway
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system did not appear; and from St. Vincent to McGregor station, to which the defendants contracted for the carriage of the goods, there was the Canada Pacific Railway. Now, by the statutes affecting the company they had, prior to the entering into the contract under consideration—
Power to make working arrangements with any railway company in the United States, or to agree for running powers over the line or lines of any such company, or to lease any such lines of railway, or to make agreements and arrangements with any such company as well as with any railway company in Canada, for the interchange of traffic passing to and from their railways respectively, and for the division and apportionment of tolls, rates and charges in respect of such traffic, and generally in relation to the management and workings of the railways or any part thereof, and of any railway in connection therewith for any term not exceeding twenty-one years.
It may be that on the whole route from Fort Gratiot to Manitoba the defendants had agreements or arrangements with railway companies in the United States of the nature of some of those thus authorized, and the arrangements may have been such as to make the whole route by which the goods of the plaintiff were conveyed from the River St. Clair to the Canada Pacific Railway in Manitoba part of which is called the Grand Trunk Railway system. Of this we know nothing, nor does the plaintiff appear to have known anything further than that the defendant had power to make such arrangements. That was information which the G.T. Ry. Co. kept to themselves. The plaintiff knew nothing, so far as appears, as to the route by which the defendants should convey his goods, as they had undertaken to do from Toronto to Manitoba.
Now if this condition applies, as contended for by the defendants, the plaintiff can have no cause of action against anyone, unless he can show precisely in what part of this long route from Toronto to Manitoba the loss or damage occurred. He could have no action against
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the defendants unless he could prove that it occurred between Toronto and Fort Gratiot, and he would be deprived of all benefit of the contract he had made with the defendants to carry the goods to McGregor, and for which he had paid, and he might look for redress as best he could from companies in the United States or elsewhere with whom he had entered into no contract, but with whom, no doubt, the defendants had, for the purpose of enabling them to execute their contracts. To my mind it is difficult to conceive anything more preposterous than that the defendants having, as carriers of goods, received payment from the plaintiff for the transport of his goods to McGregor station could relieve themselves from all responsibility by taking the goods to Fort Gratiot, and there putting them in warehouse until they should communicate with the plaintiff at McGregor station, and receive orders from him, or by notifying some of the railway companies having railway communication with Chicago that they might take them to Chicago and forward them from thence as best they could. Whether under the circumstances any condition could be so framed as to have such effect it is unnecessary to inquire; but in order to be construed to have such effect it ought at least, to use the language used in the Bristol & Exeter Ry. Co. v. Collins, to be expressed in terms as to which no person dealing with a railway company as a common carrier could fall into any misapprehension or mistake. Now in Zunz v. The S.E. Ry. Co., the ticket which the defendants had sold to the plaintiff was in three coupons, one, from London to Dover by the defendants’ railway, two, from Dover to Calais by water, and three, from Calais to Paris by the Great Northern and France railway. Whether this was a divisible contract, or one entire contract which
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was not determined, it is plain that the plaintiff knew he was about to travel to his destination by three distinct routes, precisely determined, so that he could have no difficulty in understanding what was meant by the expression: “While the passenger is travelling by the South Eastern Railway Company’s trains and boats,” in connection with that contract. Upon the back of the ticket was printed a condition which expressed in very unmistakable language that the defendants assumed no liability for anything which should happen to the plaintiff on his route, except while the plaintiff should be travelling on the South Eastern Railway Company’s trains and boats. The condition was as follows:—
The South Eastern Railway Company is not responsible for loss or detention of, or injury to luggage of the passenger travelling by this through ticket except while the passenger is travelling by the South Eastern Ry. Co’s. trains and boats; and in this latter case only when the passenger complies with the by-laws and regulations of the company; and in no case for luggage of greater value than £6. The South Eastern Railway Company incurs no responsibility of any kind beyond what arises in connection with its own trains and boats in conveyance of passengers being booked to travel over the railways of other companies, such through booking being only for the convenience of the passenger, nor will the South Eastern Company be responsible for the trains and boats whether of this or the other companies over whose lines the ticket extends, being delayed, or not meeting the trains shown in correspondence; nor for any consequence which may result to a passenger thereby.
This condition as well as the subject matter to which it relates are very different from the condition and the subject matter to which it related in The Bristol & Exeter Ry. Co. v. Collins and between the two cases there is no conflict.
Fowles v. G.W. Ry. Co. was prior to The Bristol & Exeter Ry. Co. v. Collins49 and is quite consistent
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with it. The plaintiff declared as upon a contract by the defendants as common carriers to convey plaintiff’s goods from Bristol to Brompton. The delivery note showed that the contract was to convey the goods from Bristol station of the Great Western Ry. Co. to Paddington Station, although the address of the consignee was entered thereon as at Brompton, and the plaintiff had paid for the whole carriage to Brompton under a condition endorsed on the delivery note similar to that in The Bristol and Exeter Ry. Co. v. Collins49 as to any money received by the defendants, as payment for the conveyance of the goods by carriers beyond the defendants’ railway would be received only for the convenience of the consignors for the purpose of being paid to such carriers, and would not be received as a charge made by the company upon the goods in the capacity of carriers beyond the extent of their own railway; and it was held quite in accord with the subsequent judgment of the House of Lords in the Britsol and Exeter Ry. Co. v. Collins49, that this was just the case to which such a condition applied, and that the defendants were not liable for anything which took place beyond the station to which they had contracted to convey the goods, namely, their Paddington station.
Kent v. The Midland Ry. Co. was a case quite different from the present. The question there was as to the construction of the words “off its lines” in the following sentence:—
The company does not hold itself responsible for any delay, detention, or other loss or injury arising off its lines.
And it was held that the luggage of a passenger who was travelling to his destination upon two lines of railway under a through ticket, issued by the defendants company was not “off the line” of the defendants until it was delivered into the possession of the other
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company running in connection with the first. This decision it is obvious has no bearing upon the condition at present under consideration.
In Aldridge v. Great Western Ry. Co. the goods had been delivered at the defendants at Hereford to be conveyed to Tiverton, a point on the Midland Railway or its system. The person by whom they were delivered to the Great Western Ry. Co. signed a printed note containing the condition that the company will not be responsible:
In respect of goods destined beyond the limits of the company’s railway, and as respects the company their responsibility will cease when such goods shall have been delivered over to another carrier in the usual course for further conveyance.
Nothing had been received by the company for the carriage of the goods. The goods were conveyed by the Great Western Railway Company to Gloucester and there delivered to the Midland Railway and it was held that the Great Western Railway Company were exempt from responsibility, their contract, in effect, terminating at Gloucester, where they were delivered to the Midland Railway Company.
Williams J. in pronouncing the judgment of the court says:—
We are of opinion the second condition is reasonable, and does protect the defendants; the railway company do not attempt to protect themselves from injuries or delays happening on their own line or through the negligence of themselves or of their own servants, or even on a further line, where they have received any compensation for carriage on that further line.
As was the case in Collins v. Bristol & Exeter Railway Company, and is the case here. In Rennie v. Northern Railway Company the special contract which was set up by way of defence to an action of trover was held to be a contract of the defendants
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limited to their carrying to Duluth and delivering the goods there to the Northern Pacific Railway to forward to Fort Garry, and that having done so they had fulfilled their contract and were not liable for anything which took place subsequent to such delivery to the Northern Pacific Railway Company.
None of these cases affect, nor has any case been cited which does affect to call in question the soundness of the judgment of the House of Lords in the Bristol & Exeter Railway Company v. Collins, which, in so far as this 10th condition is concerned, governs the present case.
A defence under another condition was pleaded, but does not seem to have been relied upon at the trial, nor to have been alluded to in the Divisional Court, nor in the reasons of appeal from the judgment therein to the Court of Appeal for Ontario, nor in the argument before the latter court, and for this reason alone it should not now be entertained: but, in my opinion, the condition in question has no application to the present case, any more than has the 10th condition. The condition is No. 12
That no claim for damage to, loss of, or detention of, any goods for which this company is accountable shall be allowed unless notice in writing and the particulars of the claim for said loss, damage or detention are given to the station freight agent at or nearest to the place of delivery within thirty-six hours after the goods in respect of which the claim is made are delivered.
Now the “station freight agent” alluded to in this condition is, in my opinion, clearly to be understood to be a station freight agent on the defendants’ own line proper, not a station freight agent of another unknown company upon another unknown railway in the United States for example, with whom the defendants may have connection and traffic arrangements, it
[Page 572]
may be at San Francisco or New Orleans, or any other remote place, nor a station freight agent of the Canada Pacific Railway Company at New Westminster or Vancouver or some other place in British Columbia, to which places or stations the defendants may as carriers have received payment in advance for the transportation of goods and may have contracted to convey and deliver them; and this is the construction which the defendants themselves by their statement of defence insist upon, for they allege in breach of the condition that the plaintiff did not give the notice required by the condition to the defendant’s station freight agent at Fort Gratiot, in the State of Michigan, and that this Fort Gratiot is the station on the defendants’ line of railway nearest to the point or place to which said goods were consigned, and that the said village of McGregor is a point or place beyond any place where the defendants have stations, which the plaintiff well knew.
Anything so absurd as that upon loss or damage appearing to goods received by the defendants as carriers to be carried to, and delivered, it may be, at or near San Francisco or New Orleans or at any other remote place in the United States upon or near a railway with the company owning which the defendants have traffic arrangements of the nature hereinbefore referred to, and which they have power to make, or at New Westminster, or Vancouver, or at any other remote place in British Columbia or elsewhere, and for which carriage throughout the defendants had as such carriers received payment in advance, a consignee should be required as in obedience to this condition to give to the defendants’ station freight agent at Fort Gratiot or Sarnia the notice therein referred to, cannot, in my opinion, well be conceived.
The condition, plainly, in my opinion, applies only
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to the case of goods which have reached a station on the defendants’ own line which by the contract for carriage is designated as the terminus of the contract for carriage by railway and as being the place most convenient for that purpose as the station nearest to the place off the line which is the ultimate destination of the goods—precisely as the 10th condition in Collins v. The Bristol & Exeter Railway was construed.
This construction is sensible, while that contended for is the contrary, and impracticable.
There remains only the point as to a new trial upon the grounds of the payment made by the Canada Pacific Railway Company, which for all we know may be their fair share of the plaintiff’s loss, which may not have been all sustained while the goods were in their possession. I certainly agree with the view taken on this point by the learned Chief Justice of the Divisional Court of Queen’s Bench, and other learned judges of that court.
Three weeks before the trial took place the defendants had full notice of this payment, and that it was made upon the basis of a proposal for settlement made to the defendants by the plaintiff’s solicitor about five or six months previously. Yet the defendants never alluded to it at the trial, and they got the benefit of it in reduction of the amount originally claimed by the plaintiff, and in support of which evidence had been taken on commission. Moreover the receipt by the plaintiff of this sum from the Canada Pacific Railway Company could never be set up as a bar to the plaintiffs’ action against the Grand Trunk Railway Company, nor can it in any manner embarrass them in any claim they may have against any of the railway companies whose railways the defendants’ selected as the route by which they should fulfil their contract with the plaintiff.
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The plaintiff’s claim against the Grand Trunk Railway Company is under his contract with them, while the defendant’s claim against any of the other railway companies must depend upon a contract between the defendants and such other railway companies, as appearing in their traffic arrangements or elsewhere.
I am of opinion, therefore, that the appeal should be dismissed with costs.
Appeal allowed with costs.
Solicitor for appellants: John Bell.
Solicitor for respondent: A.C. Galt.
56 L.J.Q.B. 111; 18 Q.B.D. 176.
Zunz v. S.E. Ry. Co. L.R. 4 Q.B. 439.
15 Ont. App. R. at p. 25.
Bullen and Leake on Pleadings, 4 Ed. p. 464.
Kendall v. Hamilton 4 App. Cas. 504.
7 H.L. Cas. 194; 5 Jur. N.S. 1367.
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