Mente & Co. v. Illinois Central R. R.

GODCHAUX, J. About 5 o ’clock on the afternoon of Saturday, December 22, 1906, plaintiff sent down to the receiving depot of the defendant company a dray load of burlap bags consisting of thirty-four (34) bundles, admitted to be worth $584.14. Coincident with the arrival of these goods, the defendant received written and oral instructions from Mente & Company that this load was the first installment or portion of a lot of two hundred odd bags to be consigned and to go forward as a single carload shipment to H. L. Halliday Milling Company, Cairo, Ill. Under these conditions, the thirty-four bundles were delivered to the defendant railroad, and, whilst being thus held by it in its receiving depot or warehouse awaiting the delivery by Mente & Company of the remaining bundles required to constitute the full carload — 155 — lot or shipment, they were destroyed by fire on Sunday evening, December 23, 1906. This suit is for the recovery of the value of the bags thus destroyed and the railroad rests its defense upon the proposition that the bags having been in its custody as a warehouseman at the time of their destruction, and no negligence upon its part having been exhibited, it cannot be held liable. It frankly admits, however, that if the Court should hold that its custody of the bags at that time was that of a common carrier, then the proof is such that its liability for the amount demanded must be decreed. The first question, consequently, that should be considered is whether the custody of the defendant, at the time of the loss, was that of a common carrier or merely that of .a warehouseman. I. The general rule fixing the time when a railroad’s responsibility as common carrier attaches to goods delivered into its custody for transportation is announced as follows: “The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception when they are in a fit and proper condition and ready for immediate transportation. * * * But, on the contrary, if the goods, when so deposited, are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done, or .some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his — 156 — convenience and accomodation, and the receiver, until some change takes place, will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence, or to make needful preparations for commencing, the service required of him before he can be made liable or subjected to responsibility in that capacity. * * * The duties and obligations of the common carrier with respect to the goods commences with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of-seeing to their safety.” Cited from Moore on Carriers, p. 130, par. 1; see Hutchinson on Carriers, p. 107, sec. 112; Elliott on Railroads, Vol. 4, Secs. 1403, 1409, 1464 Angell on Carriers, Secs. 131 and 134; Stoey on Bailments, Secs. 535, 536, 537; Shouler on Bailments and Carriers, Sec. 390; Rorer on Railroads, pp. 1279 and 1282; 6 Cyc. 414 and 453; 5 A. & E. Ency. of Law, pp. 261 and 262. Applying the foregoiug principles to the present' case it appears clear to the Court that the responsibility as common carrier had not attached with respect to the goods at the time of their destruction, for they had not been delivered to nor were they in the custody of the railroad for immediate shipment. On the contrary, they were to be held, according to plaintiffs instructions, until the entire carload should be delivered; and the service of transportation could not commence on the part of the railroad until the full delivery was accomplished. The determination of the period when a railroad’s duty as carrier commences is not dependent upon whether the goods were being held to await the convenience of the shipper or of the railroad, and it may be admitted that a shipment by carload is to the advantage equally of each — 157 — of these parties. The true test of whether the custody of a railroad is that of a common carrier as distinguished from that of a warehouseman, is whether or not the delivery was so made that the carrier could undertake at once, without awaiting further action on the part of the shipper, its service of actual transportation. While extreme duties and responsibility are properly imposed upon common carriers, it is equally proper that the application of these extreme duties and responsibility should not be so extended as to embrace the custody of property as to which its relationship of common carrier has not as yet attached. This doctrine has been announced and applied in innumerable cases, but only one has been called to our attention in which the facts are exactly similar to the present case. This is the case of Watts vs. Railroad, 106 Mass. 466, where the Court reached the same conclusion as we announce. See, also, Missouri Pacific R. R. vs. Riggs, 62 Pac. Rep. (Kan.) 712. The ease of Roth vs. The Brigg Terry, 18 An. 705, has been cited by plaintiff as announcing a contrary rule. The opinion in that case, in so far as it affects the issues here, is. purely obiter; and moreover, a careful reading of the facts recited in the opinion leaves in doubt not only the vital point as to whether or not the whole shipment had been delivered at a time prior to the loss, but also whether or not the contract between the shipper and the carrier embraced a fixed and determined number of bales. Article 2752 of the Revised Civi-l Code, which has likewise been cited by the plaintiff as announcing a contrary doctrine, has application in that it simply announces what is a rule of general jurisprudence, to the effect that the custody of a railroad, in its capacity as carrier, is not postponed until the goods are deposited in its vessel — 158 — or carriage, but attaches as soon as the goods have been delivered at the place of deposit provided by the carrier. The Court holds that the custody of the defendant in ■this instance was that of a warehouseman, and not that of a'common carrier. n. As the liability of the defendant was not that of a carrier, it was not necessary for it to prove the cause of the origin of the fire, as would otherwise be required under the ruling’ in the Lehman-Stern case, 115 La. 1, and it is sufficient to discharge defendant’s liability as a warehouseman, if the proof discloses an absence of negligence on its part not only with reference to the cause of the fire, but also with reference to the efforts that were made to check its spread. The goods were stored in a warehouse provided for that purpose. There is no proof in the record to show the character of the material of which this warehouse was constructed, and defendant’s contention that it was a wooden structure is not supported by 'the evidence. Even if it were true, however, that fact in itself would not show negligence in the absence of a law prohibiting the use of wooden warehouses. This warehouse was provided with ample protection against the emergency of fire in the shape of water hydrants, hose qnd nozzles, water-barrels and buckets and fire alarms — all shown to have been tested and found in good condition on the night previous to the fire. A force of trained firemen was stationed in the building, and watchmen patroled the premises as a protection against incendiarism or theft, and in order that, if a fire occurred, its existence might be discovered at once. In the present instance the fire originated in a freight-car which was used to accumulate the sweepings and trash from the warehouses. It was — 159 — customary to use the car for this purpose and as soon as it was filled with trash to remove it from the yards. In the present instance the trash car was only partly filled and was left near the warehouse in order that it might be conveniently used'in accumulating ..sweepings. The fire in this ■car was promptly , discovered by watchmen and the ap.paratus provided by' the company for extinguishing fires was promptly brought into play by the company’s fire brigade. It was at once discovered, however, that the water supply was wholly insufficient to fight the flames, and, consequently, within four or five minutes after the fire was discovered, one or more automatic alarms were sounded summoning the city’s fire department. Meanwhile, however, the flames had been communicated from the car to the warehouse in which plaintiff’s goods ;wére stored, and this warehouse was either partially or wholly destroyed before the fire could be extinguished. The evidence discloses that switching engines were promptly employed to move, as far as practicable, all cars from the radius of danger, and that all reasonable effort was made to save from the warehouse property that was stored therein. Against the presumption in which plaintiff indulges, to the effect that the fire was caused by a spark from a passing engine, it is shown by defendant that no engine had passed within, a square of the point of origin of the fire for a long time previous to its discovery, and moreover that all its engines were provided with spark-arresting devices of the latest pattern, and had been found to be in proper condition shortly previous to the fire. Under the circumstances the Court is of the opinion that the defendant took proper precautions against the occurrence of fires; provided amply for the prompt discovery, as well as for the quenching and checking of fires that might occur. The fact that the water supply which was furnished it — 160 — by the New Orleans Waterworks Company was insufficient at the moment of the fire, exhibits no negligence on defendant's part, particularly in view of the fact that this water supply was tested and found to be ample on the night previous to the fire. Upon the whole the Court is of the opinion that the facts disclose an absence of negligence on defendant’s part sufficient to free it from liability as a warehouseman. January 24, 1910. The case of Marande vs. Texas & Pacific Railway, 184 U. S. 173, cited by plaintiff involved the responsibility of a railroad in its capacity as carrier and not as warehouseman, and moreover discloses a state of facts with reference to the degree of care exercised by the railroad in the care of the goods that easily distinguishes it from the present case. The judgment of the lower Court, which was in favor of the defendant, is accordingly affirmed. Judgment affirmed.