Levy v. Louisville & Nashville Railroad

The opiuion of the Court: was delivered by Fennek, J. The plaintiff shipped four carloads of mules from Sfc. Louis to New Orleans on the Sfc. Louis, Iron Mountain & Southern [617] Railroad and its connecting lines. Over the first named road and the Mobile & Ohio road the mules were transported to Mobile, Ala., and there delivered to, and received by, the defendant, as the last connecting carrier. Owing to damage to its road by storm, defendant was unable to forward the mules over its own line. After several days detention in Mobile, defendant shipped the mules, in its own name and consigned to itself, to New Orleans, via Meridian and Jackson, Mississippi, over the Mobile & Ohio, the Vicksburg & Southern, and the Chicago, St. Louis & New Orleans Railroads. On arrival at New Orleans, defendant notified the original consignee, Marx Levy; defendant collected the freight and charges from him; defendant delivered, or caused to be delivered, the mules to him. The consignee had no dealings with anybody but the defendant, which itself assumed to be exclusively charged with, and responsible for the mules. The evidence satisfies us that the mules were received by defendant and left Mobile in good condition, and that, on the long trip of sixty-six hours to New Orleans, they were neither fed nor watered. Naturally, they reached this city in bad condition. They were then turned into a lot where they had access to unlimited water and, of course, drank excessively. Afterwards, they were delivered to plaintiif’s consignee. A number of them died; others were ill and greatly damaged; and plaintiff suffered heavy loss, for which he brings the present action. He is' entitled to redress from somebody. From whom ? Defendant undoubtedly received the mules, in Mobile, as a common carrier, for transportation to New Orleans, and thereby incurred the duties and responsibilities of carrier in relation thereto. What steps the impossibility of forwarding over its own line, owing to interruption, might have justified defendant iu taking, as agent of consignor or consignee, it boots not here to discuss. In point of fact, defendant elected, in its own behalf and on its own responsibility, to change both the route and the consignment, to forward the mules in its own name, consigned to itself, to make delivery to and collect freight from the original consignee, and, in all respects, to deal with the latter as if it had itself been the actual carrier. Defendant must stand in the shoes whieli it has itself put on. Quoad the plaintiff its conduct made the lines over which the mules were transferred, pro Jiac vice, its own, and subjects it to all the responsibilities of an actual carrier. Indeed, we are at a loss to discover any vinculum, juris connecting plaintiff directly with the actual carriers between this city and Mobile, in absence of any contract between him and them, and, in fact, of any [618] dealing whatever between them. Defendant alone dealt with them and is entitled to hold them responsible for their faults. We consider the amount of damage fixed by the lower Judge fully sustained by the evidence, and find no force in the defense of insufficiency of notice by the consignee of the condition of the stock after receipt. The defendant called the Chicago, St. Louis & New Orleans R. R. Co. in warranty. In absence of all privity between plaintiff and the party so called in warranty, semMe that it is not a proper case for such a call, under the provisions of C. P. 379; 8 La. 37; 8 Rob. 27; 8 An. 136. We agree with the District Judge, that while defendant has an undoubted claim upon the carriers between this city and Mobile, it has failed lo fix the responsibility upon the particular one called in warranty with sufficient clearness to authorize judgment. Judgment affirmed.