70 F. 764 | E.D. Tenn. | 1895
James intervenes in this foreclosure suit, and asserts a claim against defendant company for the value of goods lost in the destruction by fire of defendant’s depot at Mossy Creek, June 6, 1892. Priority of payment out of the proceeds arising from sale of the mortgaged property is claimed against the lien of the mortgage under the act of the general assembly of 1877. The goods were sold on order, and shipped from Knoxville, Tenn., May 18, 1892, to intervener, at Mossy Creek, Tenn. An invoice of these goods was sent by seller to intervener by mail on same day the goods
It is set up in the answer to the petition that the agent had given notice to consignee of the arrival of the goods, but this would lx1 inconsistent with his repeated declarations that the goods had not arrived. There is no proof of this fact, and the agent’s gross inattention to his duty, in not knowing what he should have known, is such as to forbid any presumption that he discharged Ms duty in any respect, if ordinarily such presumption arose, in a case like this. ’The notice referred to is that required by statute (Mill. & V. Code, § 2788). In view of the ruling in Butler v. Railroad Co., 8 Lea, 33, the question whether notice was given or not does not change tee result of any issue in this case. The special master reports in favor of the claim, and the defendant railway company and the trust company except. So far as the defendant railway company is concerned, the fads of this case are in all essential respects similar to those in Railway Co. v. Kelly, 91 Tenn. 699, 20 S. W. 312. Judge Caldwell, speaking for the court, gives the reasoning, and states the ground on which the liability rests in such cases, with great clearness, as follows:
“The fire and. the loss may have had different causes. The fire destroyed the goods, but it does not follow that (he cause of the lire and the cause of tiie loss to plaintiff wore one and the same, in legal contemplation. They may have been entirely different. The failure to deliver the goods when demanded did not canse the fire, but it did cause the loss, in such sense that they would not have been lost without the failure. Had the defendant delivered the goods, they would have been removed, and the loss averted. The neglect and wrongful detention of the goods, and that alone, exposed them to the lire; and, but for that detention, they would not have been destroyed, though the Are did occur. Thus it becomes obvious that the negligence of the railway company was the proximate cause of the loss. The causal connection between the failure to deliver the goods and the injury to the plaintiff is complete.”
Upon tee authority of Railway Co. v. Kelly, judgment ⅛ allowed against the defendant railway company for the value of the goods, with costs incident to the intervention. It remains to determine whether this judgment is one of the class provided for by the act of
“Ancl provided further, that no railroad company or corporation shall have power under this act, or any of the laws of this state, to create a mortgage or other kind of lien on its property in this state, which shall be valid and binding against judgments or decrees, and execution therefrom, for timbers furnished or work and labor done on its road, or for damage done to persons and property in the operation of its railroad in this state.”
The court in this case is concerned only with the last clause of the provision, — “or for damages done to persons and property in the operation of its railroad in this state.” Counsel for the trust company insist that the act applies only to judgments in actions in tort, where the damages result from an injury directly done, with force, whereas in the case at bar the suit is necessarily upon the contract of shipment, for a breach thereof; and in support of the latter proposition the case of Railroad Co. v. Neal, 11 Lea, 270, is relied on. The opinion by Judge Freeman is brief, and may be given in full:
“The facts are that the plaintiff delivered this bale of cotton, with several others, to the railroad agent, who gave receipt of the company, to be shipped to Mosby, Hunt & Co., of Memphis, Tenn. The cotton was not shipped, but probably stolen from the platform, no watchman or guard being kept over it while on the platform after delivery. The only question contested is whether the statute of limitations bars iDlaintiff’s claim. If the statute of three years applies to the case as presented, it is conceded the suit cannot be maintained. If six years, it is then conceded the action can be sustained, and the defendant is liable. This is not an action for injury to personal property, nor for detention or conversion of the same, which is barred in three years by section 2773 of the Code. It is for damages, or for breach of the contract to ship the cotton to Mosby, Hunt & Co., and comes under section 2775,— “actions on contracts, not otherwise provided for, shall be barred within six years.”
It is entirely conceivable that if the shipper could not assert 'and prove an injury to the cotton, or a loss or destruction, by some act of negligence by the carrier, his only remedy was upon the contract, for failure to deliver the cotton. The opinion is to be1 read and understood with reference to the facts of the particular case decided. It is clear that the court did not decide that the contract, in such case, furnished the full measure of the defendants’ obligation, nor that the shipper’s only remedy would be upon the contract, where a contract exists. And the statute does not admit of any interpretation based on such proposition, nor upon the distinction between a suit upon the contract- and one in tort, although the suit would very generally be of the latter kind. For, whenever the common carrier is brought into contract relations with either a passenger or shipper, the law, at once, as matter of public policy, imposes on the carrier certain obligations and liabilities, which do not depend on the particular contract at all. Indeed, these imposed duties are primary obligations. This doctrine has often been announced by law writers and judges in different forms, and its truth is obvious enough from a simple statement of the proposition. Railroad Co. v. Swift, 12 Wall. 262; Railroad Co. v. Derby, 14 How. 468; Pollard v. Railroad Co., 101 U. S. 223; Ray, Pass. Carr. p. 19, § 3, and cases; Tayl. Priv. Corp. §§ 350, 351, and cases cited. And these obligations, thus im
*768 “The claim of Kratzenstein was for damages in detention of freight shipped oyer its line of railway. There is no evidence as to the character of the damages sustained. If the goods perished or were injured in transit through this state, Kratzenstein would seem to he within the saying of the statute, as having a claim for ‘damages done * * * to property in this state.’ There are two objections to this claim: First. It is not shown that Kratzenstein’s property was damaged in the operation of the railway. I£ his loss was not due to an actual injury to his property, then he has not made out a case of ‘injury to property,’ within the meaning of the act of 1877. Second. It is not shown that any injury was done his property in the operation of the road within this state. If his damages were sustained at sfome point on the line, but in another state, the claim is not within the act. Kratzenstein alleges that his loss was ‘for a delay at Chattanooga.’. The answer only admits that his judgment was for damages for ‘detention on some part of its line of railroad.’ There is no evidence as to where he sustained his loss, or as to whether his damages were to the goods in shipment, or for a decline in the market, or loss of a profitable contract by reason of delay. One who seeks to avail himself of a proviso limiting the operation of a general power must bring himself clearly within the exception.”
It is true that a point in the construction of the statute could hardly he considered as definitely settled by what is said, and that the language is guarded; but this is characteristic of a really able and critical judge, and only adds value to the opinion as far as given. It is dear from what is here said, as well as the terms of the act itself, that it is not material whether the claim is for damages directly done, or damages suffered in consequence of negligence in' any form. i
It is next insisted by the able counsel for the trust company that according to the doctrine of Butler v. Railroad Co., 8 Lea, 32, and Railway Co. v. Kelly, 91 Tenn. 699, 20 S. W. 312, the damages did not occur “in the operation of the railroad,” but while in custody of defendant company as a warehouseman. What the court decided in those cases was that when the freight arrives at the point of destination, and is deposited in the carrier’s depot, the liability of the company as common carrier ceases, and the liability thereafter is that of a warehouseman, involving the duty of ordinary care. The court did not consider, and clearly did not decide, that the use of the depot was not a part of the operation of the railroad. The statute is to be construed in the light of the actual facts and circumstances of the subject to which it relates. These depots, and their use at the principal stations,, are just as essential to the operation of a railroad as any other part of the equipment. This is well known to be so, and the facts which make it so need not be stated. The operation of the railroad is not confined to the movement of its cars, but includes the use of its depots and all appliances, until delivery to the consignee is complete, and the duty of the company terminated. In Easton v. Railway Co., 38 Fed. 12, Judge Pardee said:
“A debt of a railroad company, arising out of tbe loss by fire of goods while in possession of said railroad company as a common carrier, is generally, and perhaps properly, classed as an operating expense; but when presented against an insolvent railroad company over four months after the railroad property is placed in the hands of a receiver in a foreclosure suit, and urged as a lien upon the income of the property earned by the receiver, it is necessary to discriminate such a debt from debts arising for labor, supplies, equipments furnished for, and necessary for keeping up, the railroad, as ‘a going concern.’ ”