Farley v. Lavary

JUDGE WHITE delivered the opinion oe ti-ie court. This action was brought by appellee for damages for the destruction of certain household goods. The allegations of the petition are that appellant, doing business as.the Earley Transfer Company, contracted, for hire, to carry these household goods from Lexington to Nicholas-ville, and that while the goods were in the possession of appellant they were destroyed by reason of the negligence of the servants and employes of appellant in charge of the wagons. It is alleged that appellant is engaged in the business of, and is, a common carrier. The damage claimed is $500. The answer denied that appellant was a common carrier at all; admitted a contract with appellee to haul by wagon her household goods from Lexington to Nicholas-ville, and admitted that while in transit certain of the goods were destroyed by fire, and other articles damaged, but denied that by reason thereof appellee was damaged to the extent of $500, or in any sum exceeding $250. The answer further pleaded that the: destruction and damage to the goods by fire were without fault on his part, and denied that the fire was caused by the negligence of any of his servants. The issue was tried before a jury, who returned a verdict [525] for $400 for appellee. Judgment was. entered accordingly, and from that judgment this appeal is prosecuted. The facts proven on the trial without material controversy are that appellant, doing business as the Farley Transfer Company, had a number of vehicles running in the city of Lexington all duly and regularly licensed to haul for hire; that in such business he hauled for any and all persons, and goods and merchandise of all kinds; that he hauled in the city and about the city, to the fair grounds, and other places. There was no dispute as to the contract with appellee to haul the household goods, nor of the fact of damage. As the cause of the fire, there was some proof that the driver was smoking; and, unless the fire caught from his pipe or cigar, it is unexplained how it originated. The proof as to the amount of the loss is conflicting. The court gave to the jury an instruction as follows: “If the jury believe from the evidence that the fire which damaged or destroyed the goods of the plaintiff was caused by the negligence or carelessness of the defendant’s agents or employes in charge of the wagon upon which said goodsi were being carried, or if the jury believe from the evidence that the defendant at the time of said fire was a common carrier, and was conveying said goods as a common carrier, the jury should find for the plaintiff.” The court then defined a “common carrier,” and also gave the counterpart of No. 1, and a,s to the measuie of damages. Appellant seriously objects to instruction No. 1, quoted,.and to its counterpart. Counsel insists that there was not sufficient proof of negligence of the employe in charge of the wagon to sustain a recovery on that ground, and also that there Avas no evidence that appellant was, as to these goods, and this contract Avith appellee, a com [526] mon carrier. Counsel therefore insists that instruction No. 1, supra, was error, for which a reversal must be had. The instruction is based upon two ideas; i. e., appellant is liable if the loss occurred by reason of negligence1 of his employe; appellant is liable if he was a common carrier. If from the evidence the court was authorized to submit to the jury the question of appellant being a common carrier, the question of negligence becomes unimportant. If appellant was a common carrier in carrying these goods, his liability stands admitted; for he nowhere pleads that the damage was caused by the act of God, the public enemy, or the inherent quality of the goods. We are of opinion that by the evidence of appellant himself it is shown that he was a common, carrier within the limits of the city of Lexington. He admits that he hauled for all or any persons, and had obtained a license so to do. Being a common carrier, appellant could have been' compelled to haul for appellee within the territory in which he was engaged, but she could not have compelled him to go outside his territorial limit. In this case, however, he contracted to go beyond his territory. Applying the facts to a railroad, we should say he agreed to go beyond the end of his line. It has repeatedly been held that, while a railroad can not be compelled to accept and agree to carry goods to points beyond its line, yet it might do so. If the carrier contracted to convey beyond its line, it would be liable1 as a common carrier for the whole distance. In the case of Ireland v. Mobile & Ohio Railroad Co. 105 Ky., 400, [20 Ky. L. R., 1586; 49 S. W., 188, 453], this .■ doctrine is well- settled. In the dissenting opinion by Mr. Justice Burnam (Justice DuRelle concurring) this principle is admitted and emphasized; the [527] dissent contending that beyond its. line a carrier may, by special contract, mate its liability less than at common law. It being clear by the proof that appellant was a common carrier, and agreed to carry these goods from some point in Lexington to Nicholasville, without any further contract, the liability of a common carrier attached the whole distance. The instruction given was, therefore, not error. There appears to us no error in the record. The judgment is therefore affirmed, with damages.