54 Tenn. 253 | Tenn. | 1872
delivered the opinion of the Court.
The following facts are sufficiently shown in the bill of exceptions, to raise the questions of law discussed :
In April, 1869, Campbell & Richards, merchants, doing business at Roaring Springs, Ky., ordered from a firm in Philadelphia six cases of boots and shoes. The boxes were marked: “Campbell & Richards, Roaring Springs, Ky., care Whitlock, McNichols & Co., Linton, Ky.,” and delivered to the Pennsylvania Railroad for transportation, and a receipt taken with conditions annexed, among other things providing in substance that said Pennsylvania Railroad Company should not be liable for the goods beyond the terminus of their road. The plaintiff in error owns a line of railway extending from Louisville, in Kentucky, to the line of Tennessee, some thirteen miles north of Clarks-
It appears the goods in question were received by the plaintiff in error at Louisville and transported to Clarksville, arriving there about the 27th or 28th of April, and were stored in the freight depot of the road. It is admitted that Clarksville is the proper railroad station where the goods should have been stopped on their route to Linton. It is proven by the agent that he immediately mailed to Campbell & Richards a notice that the goods had arrived. On the 14th of May, 1869, Richards, of the firm of Campbell & Richards, called at the railroad depot at Clarksville, and inquired for the goods. Other goods were delivered to him, but these were not; he was told they had not arrived. This seems probably to have been a mistake or oversight of a young man who was at the time in the office, though not the regular agent.
The declaration avers the failure of the plaintiff to carry the goods according to its undertaking, which is laid in different forms, also joining counts in trover. The verdict and judgment were in favor of the plaintiff below.
In two recent cases at Knoxville, not yet reported, this Court has decided that where there are connecting lines of railway, and one road receives goods for transportation, marked and consigned to a point beyond the terminus of its own road, but on the line of • the - connecting road, the road first receiving the. goods will be held liable for their delivery at their destination, unless this liability is limited by express contract. See cases of E. T. Va. & Ga. R. R. v. Rogers & Hartsell, and Western & Atlantic Railroad Co., v. McElwee, et. als.
These cases somewhat change the rule followed by perhaps a majority of the American cases, and follow the English rule. In this case, however, it appears that the liability of the Pennsylvania Railroad was expressly limited to the terminus of their road, and the proof indicates that the liability of the plaintiff in error was to be governed by the same contract. The case is probably further distinguishable from the cases above referred to by the fact that the road of the plaintiff in error is only an intermediate link, and that there is in reality no railroad connection with
Although these goods were directed to the care of Whitlock, McNichol & Co., Linton, Kentucky, there can be no doubt that the owners in person were entitled to the goods at Clarksville, upon tendering the charges. Yet, the failure to deliver them when called for by Richards on the 14th of May, was not necessarily a conversion, inasmuch as it was probably an inadvertence, and without any intention to deny the rights of the owners. Yet it was probably such negligence as would have rendered the company liable for any damages resulting to the owner on account of the delay thus occasioned, if they had been afterwards received by the owners-Mere delay however, is not a conversion.
The duty of the plaintiff in error in respect to these goods, as a carrier, seems to have been performed by carrying the goods to Clarksville. What then was its duty? This depends upon the facts in regard to the means by which, according to the usual course of business, the goods were to be forwarded. If by its contract its liability as a carrier only extended to the terminus of its route, it was not bound to
But then it must appear that there were carriers whose business it was to receive and forward goods on this route; for if there were no such carriers ready to receive and forward on this route then of course the plaintiff in error would not be liable for a failure to deliver the goods to such carriers. How the facts are, in regard to the usual course of business by which freights were transported between the railroad depot of the plaintiff in error at Clarksville and points on the Cumberland River, does not clearly appear. It does appear with reasonable certainty that the usual way was by steamboats from the boat landing at Clarks-ville; but then it does not clearly appear whether there were any regular carriers or means of transportation between the depot and boat landing. True, this is but a short distance of some four hundred yards, and yet it may be as important as if the line were longer.
The plaintiff in error was not bound to transport the goods over this link of the route, unless it had an established custom or usage by which it was bound to do so..
In this cause, after considerable delay, the plaintiff in error delivered the goods to Whitlock, McKinney & Co., a firm of commission merchants doing business at Trice’s Landing, two miles from Clarksville. As we have seen, the mere delay in making
Upon this his Honor, the Circuit Judge, instructed the jury as follows: “If you find the defendant received the goods from the Pennsylvania Railroad Company, marked Campbell & Richards, Roaring Springs, Kentucky, care Whitlock, McNichols & Co., Linton, Kentucky, and brought them to Clarksville, and delivered them to Witlock, McKinney & Co., New Providence, Tennessee, the defendant would be guilty of a conversion of the goods, and the plaintiff would have a right to recover on the second count in the declaration,” etc.
The error is apparent, because his Honor assumes that Whitlock, McKinney & Co. were not common carriers whose business it was to receive goods at the depot at Clarksville and forward them by the usual route to Linton, Ky. However clear this fact may have appeared from the proof, it was nevertheless a question of fact for the jury. His Honor should have instructed the jury, that it was the duty of the plaintiff in error to have delivered these goods to the next carrier, according to the usual course of business, in a reasonable time, and with all ■ convenient dispatch, which would mean the next carrier carrying goods over the route these goods were intended to
Perhaps if there were two routes between the points designated equally used by the public, a delivery to a carrier on either route would be good when there is nothing to indicate which of the two routes the goods were intended to take.
If the proof should show that there were no carriers to receive and forward the goods upon the route indicated, then the duty of the plaintiffs in error was to retain the goods and notify the owner, and in such case a delivery to other parties, not in accordance with the usages of business, would render them liable.
There were other errors in the charge, but it is manifest that the case was decided upon the instruction above set forth, and upon the error in this the judgment must be reversed.