Merchants' Wharfboat Ass'n v. Wood

64 Miss. 661

• Court: Mississippi Supreme Court
• Decided: April 15, 1887
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The appellees delivered to the Georgia Pacific Railroad Company certain cotton consigned to their commission merchants in the city of New Orleans. This cotton was carried under a through contract of affreightment, but the railroad was to deliver it to the appellant at Greenville at its cotton yard, and appellant was to deliver it to the steamer, by which the journey was to be completed. There was a contract between the railroad company, the appellant, and the steamers Helena and Choteau under which cotton from the interior was to be taken on through bills to New Orleans at a certain rate, of which the railroad received a certain sum, the appellant another, and the steamers the remainder. Where freights were not prepaid the railroad company on delivery to the appellant was paid by that company its freight, and when delivered by the appellant to the steamers they in turn repaid it the amount paid to the railroad company and also paid the sum due to' appellant for its services, collecting from the consignee the total charges. Appellant is a warehouseman and forwarder, but not a common carrier. The steamers Helena and Choteau were due' at Greenville on Saturday of each week, but they were frequently, if not usually, behind time, and it seems there was an*agreement between the parties to the contract (the railroad company, the appellant, and the steamers) that cotton might be forwarded by other boats whenever the Helena or Choteau should be more than twenty-four hours late. Whether this modification of the contract was in force at the time of the loss of appellees’ cotton is controverted, but for the purposes of this decision we will assume that it was.

Appellees’ cotton was delivered by the railroad company to the appellant on Tuesday, the 22d day of December, 1885, and was destroyed in its yard by fire on Tuesday, the 29th, and to recover the value of the same this suit was brought. It is conceded that the fire was non-negligent in its origin. It originated in an oil mill which for three weeks before that time had not been running, and from thence was. communicated to the cotton yard by burning shingles from the mill carried by an unusually high wind, which chanced to be blowing from the direction of the mill toward and across the yard. The ground upon which liability is sought to be fixed upon appellant is that it was guilty of negligence in not shipping the cotton to New Orleans on Sunday, the 27th, by the steamer Richardson, which then passed down the river and would have taken it if it had been tendered for transportation.

The appellant interposed several defenses to the suit: first, that it had no opportunity of shipping out the cotton except that afforded by the Richardson, and this being on Sunday it was not bound to ship by that boat; second, that under its contract with the railroad company and the steamers Helena and Choteau it was justified in holding the cotton until the arrival of one of those boats ; third, that the railroad company was the agent of the plaintiff, and as such agent delivered the cotton upon an implied direction to hold for shipment by the Choteau or the Helena; fourth, that the railroad company knew the dangerous condition of the yard, and as agent of the shipper was guilty of contributory negligence in depositing the cotton in the yard; fifth, that there was no negligence in the detention of the cotton, and, sixth, that the loss was not occasioned by the detention but by an independent proximate cause, viz.: the burning of the oil mill.

On the trial it was shown that the yard of appellant was at the time of the reception of the cotton crowded with other cotton, much of which was not held for immediate shipment but was owned by purchasers who were in the habit of accumulating large lots before shipping out to Eastern mills. Much of this cotton had been sampled by cutting large slits in the sides of the bales, and the samples, when drawn, were placed upon the bales, rendering them peculiarly easy of ignition. The yard was a place of public sale, where cotton was carried and left until sold, where transactions of sale were made, and many persons assembling there for that purpose were in the habit of smoking, though forbidden so to do by' the rules of the company and by posted notices. The engines of the railroad were driven in and through the yard in delivering the cotton transported by it. There were several small houses occupied by negroes adjacent to the yard, and one house used by the company in which cottonseed was stored. It also appears that the defendant was accustomed to ship out cotton on Sunday, that being the day on which the boats patronized by it most frequently arrived or departed.

In view of this latter fact we think the defendant could not avoid any liability which otherwise would attach to it on the ground that it was not under a duty to violate the Sabbath. It is certain that it was not for this reason it refused to deliver the cotton to the Richardson, and that it would have shipped it by the Helena or the Choteau if either of them had arrived on that day.

By the laws of this State (Code of 1880, § 2949) the transaction of secular business on the Sabbath is prohibited and made penal, but the proviso to that section is “ that nothing in this section shall apply to railroads or steamboat navigation in this State.” The business in which appellant was engaged in reference to the property of the appellees was so intimately connected with that of steamboat navigation and so necessary to it as to fall within the exception of the proviso to the statute. We do not understand that a railroad company or a steamboat is bound to transact business on the Sabbath merely because the statute permits it to be done, but if they hold' themselves out to the public as so doing and enter upon business which, according to their usages and habits, will be transacted on that day, they cannot shield themselves for either misfeasance or nonfeasance, because it was done or omitted to be done on the Sabbath.

We dissent from the proposition advanced by appellant that the railroad company, being the agent of the appellees to deliver the cotton and having knowledge of the condition of the cotton yard at the time the cotton was deposited therein, was guilty of contributory negligence in depositing it there, and that the appellees, as the principal of the negligent agent, are also to be held guilty of such negligence; nor do we assent to the view that the railroad, as the agent of the shipper, selected the boats by which the cotton was to be transported. There is no fact disclosed by the record proving or tending to prove that appellees had any notice of the tripartite contract between the railroad, the appellant, and the steamers, under which they were accustomed to transport freights. By its contract the railroad company agreed with appellees to take their cotton at a stipulated price from the place of shipment to New Orleans, but was to be liable for losses only which might occur while the property was in its hands. The shippers had no interest in or knowledge of the contract it had made with other connecting carriers, but they had reasonable ground to believe and were justified in believing that the wharfboat company, to whom the cotton was to be delivered to be forwarded by the steamer, and the steamer by which it should afterward be carried would exercise that degree of care and prudence that the law devolved on them, and for a failure so to do would be responsible in damages. Under some circumstances it may be that a carrier is the agent of the shipper, but that relation does not exist under the contract here' made to the extent claimed by the appellant. The contract was made between the railroad, for itself, the appellant, and the connecting carrier on the one part, and the shipper on the other. There is nothing in it from which can be inferred a power in the railroad as agent of the shipper to make a contract with the appellant which would relieve it from responsibility for its own negligence, or to bind the shipper by any contributory negligence of which the carrier railroad company might be guilty. The railroad company was bailee of the shipper until it should deliver the cotton according to its contract to the wharfboat company, which then in turn assumed that relation under the contract of shipment, and with the relation it also assumed the duties and responsibilities which flowed from it according to the character of business in which it was engaged. While the cotton was in the hands of the railroad, it was bailee with the responsibility of a common carrier. When it reached the defendant it became bailee in turn, but only with the liability of a warehouseman, but this included responsibility for losses occurring by its neglect, against which the railroad had no authority to relieve it. Hutchinson on Carriers, § 12.

It is conceded by the appellees that the defendant under ordinary circumstances would have performed its duty by holding the cotton until the arrival of the Helena or Choteau if .either should arrive within a reasonable time, and that it is not the unvarying duty of a warehouseman and forwarder to ship by the first opportunity. Their contention is that if by all the surrounding and accompanying facts and circumstances the ware-housemen, as men of ordinary prudence, were admonished of the ■ danger to which the property was exposed by reason of its liability to fire, it was appellants’ duty to ship out the cotton by the first opportunity afforded, because to retain it in the yard endangered its safety. That it was dangerous to permit it to remain they contend was an inference that the managers must have drawn from the fact that the yard was in a crowded condition; that much of the cotton had been sampled and the combustible cotton drawn from the bales scattered around where men were in the habit of smoking, and where the engines of the railroad ran in drawing their cars into the yard; that the adjacent cabins occupied by laborers and the seed-house were sources from which accidental fires might be expected ; •that the oil mill and other buildings located within dangerous limits should also have been considered by the warehouseman, and if from all these danger from fire might reasonably have been feared, it was negligence to retain the cotton after the arrival of the Richardson.

We concur in the position thus assumed, and are of opinion that it was properly left to the jury to determine whether the defendants were guilty of negligence in failing to ship out the .cotton by the opportunity afforded by the Richardson on Sunday; and this brings us to the final question in the cause.

The plaintiffs insist that a wrong-doer cannot apportion his own wrong, wherefore, since but for the negligent act of the defendant in failing to ship the cotton by the Richardson (which failure the verdict of the jury was found to have been negligence), it could not have been destroyed by the fire, it is liable for the injury sustained ; or, in other words, that if the negligent act furnished the opportunity for the injury the defendant must respond in damages regardless of the immediate cause of the injury; or, if mistaken in this, then the plaintiffs contend that if certain surrounding and attendant circumstances admonished the defendant that to retain the cotton would expose it to danger of fire from these sources, then if the fire did destroy it the defendant is liable even though it did not originate from those things which admonished of the danger, but occurred from a source from which no danger was or could have been reasonably apprehended.

It is contended for the defendant that if it be conceded it was negligent in not shipping out the cotton, such negligence was the remote and not proximate cause of the loss, and causa próxima non remota spedatur.

It would be unprofitable to attempt an investigation of the very numerous, perplexing, and contradictory decisions which have been made upon this much vexed subject; we have examined the cases cited by counsel, and find them to have been selected with discrimination and to fairly represent the conflicting views which prevail in different States. We have found no more intelligent and satisfactory deductions from the general course of decisions than the following propositions laid down by Mr. Cooley in his work on torts :

1. That in the case of any distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary, and proximate result. Here the wrong itself fixes the right of action. We need not go further to show a right of recovery, though the extent of the recovery may depend upon the evidence.

2. When the act or omission complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission as to appear to have resulted therefrom according to the ordinary course of events, and as proximate result of a sufficient cause.

3. If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some person or persons, and doe3 actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent; but if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause and not to that which was more remote. Cooley on Torts 69.

We accept the second proposition, assuming that the words “ according to the ordinary course of events ” include not only those consequences which necessarily and invariably follow from known causes, but those which may and probably will follow.

The verdict of the jury has established for the purposes of this examination the fact that the circumstances existing at the time when the cotton might have been shipped from the yard were such as to warn the defendant it was dangerous to keep it there, and that it was guilty of negligence in so doing. If the fire had resulted from those circumstances which were relied on by the plaintiffs as indicating the danger to which the property was exposed, or either one of them, the defendant would have been responsible for the loss; but it does not follow that because the injury resulted from fire, and the defendant was admonished of danger from fire, it is to be held responsible. The inquiry returns, was it a fire from which a reasonably prudent man would have anticipated danger ? To illustrate: if a bailee should deposit the goods of the bailor near the walls of a building which was toppling and threatening to fall, and the wall should fall and injure the property, he should be answerable, for it was his duty to have avoided the danger; but if the dangerous building do not fall, and .another building, from which no danger could reasonably be anticipated, unexpectedly fall and injure the goods, here he is not answerable, though the injury has resulted from a like cause, the falling of a wall, for the wall which fell, fell not according to the ordinary or probable course of events, but unexpectedly.

In Morrison v. Davis, 20 Pa. St. 171, a carrier by canal used a lame horse in pulling his boat, by reason of which it was delayed, and because of the delay it was subjected to a flood whereby the goods were injured. It was held that he was not liable for the reason that he could not foresee the danger. In McGrew v. Stone, 56 Pa. St. 440, the owner of a coal boat anchored in a dangerous part of the stream in the vicinity of many other boats; one of his boats was injured, and sinking, floated under the boat of plaintiff, which, upon the subsiding of the waters, settled upon it and was lost. It was held to be a question of fact to be decided by the jury whether, under all the circumstances, the defendant should have anticipated the probability of danger to the boat of the plaintiff, the court saying: “ If he knew that barges filled with coal are ponderous, unwieldy, and difficult of control, are liable to injury and easily sunken, and that the place of mooring by reason of thestrength of the current and floating drift was one of danger and most likely to cause such boats to sink, and also knew that this place in case of the sinking of his boat was likely to prove to be dangerous to some of the boats lying below, and that the flood would come — for it was his purpose to await its coming to carry him out — it could scarcely be held that these circumstances did not indicate to his mind the great danger of mooring there, and if an accident should happen there the danger to which it would exposeothers. The injury under such circumstances would not be so remote that it ought not to taken into account. But it must be observed that these are inferences of fact which belong to the jury, whose province it is to determine what are the circumstances and the inferences of probability to be drawn from them.”

It is unnecessary to pass upon the numerous instructions given for the respective parties. What we have said will indicate sufficiently our view of the principles upon which the case ought to have been tried. If the danger of fire from the oil mill was such that a reasonably prudent man would have considered it as affording a reason for not keeping his own property in a yard located as was that of the defendant, or if it was one of a number, and the surroundings taken as a whole, made up a danger from fire, originating in or proceeding from the mill, too great to make the keeping of the cotton the act of a prudent man, then, though there were other circumstances more calculated to awaken alarm from which the fire did not arise, the cause is not too remote to be considered. But if the mill was not a cause of reasonable apprehension of a fire so originating or proceeding, either of and by itself, or taken in connection with other surroundings, the defendant would not be responsible for the result of an unexpected fire originating therein merely because other and distinct circumstances from which no harm actually came admonished it of the danger of a fire.

In the court below the jury was in effect told that if the condition of the yard, the proximity of the cabins and the seed-house, the habit of smoking indulged in by those visiting the yard, and the fact that the engines ran into the yard, warned the defendant of the danger of fire, then if a fire occurred, though not originating from either of these sources, and though neither of these contributed to the loss, the defendant was responsible therefor. This is an erroneous view of the liability of the warehouseman, and imposed responsibility on him regardless of the fact that no danger could reasonably have been found from the source of the fire. Whether a fire from that source should have been anticipated by a reasonably prudent man was an inference to be drawn by the jury from all the facts in evidence.

The judgment is reversed.