Bassett & Stone v. Aberdeen Coal & Mining Co.

• Decision Date: 13 June 1905
• Citation: 120 Ky. 728,88 S.W. 318
• Parties: BASSETT & STONE v. ABERDEEN COAL & MINING CO.
• Court: Kentucky Court of Appeals

88 S.W. 318

120 Ky. 728

BASSETT & STONE v. ABERDEEN COAL & MINING CO.

Court of Appeals of Kentucky.

June 13, 1905

Appeal from Circuit Court, Butler County.

"To be officially reported."

Action by Bassett & Stone against the Aberdeen Coal & Mining Company. From a judgment in favor of the defendant plaintiffs appeal. Reversed.

J. S Wortham, Howard & Gardner, and Green & Van Winkle, for appellants.

A Thatcher and W. A. Helm, for appellee.

HOBSON C.J.

The Aberdeen Coal & Mining Company operated two boats--the Carson and I. N. Hook--on Green river. Bassett & Stone made a contract with the company to bring a lot of brick from Evansville to Rochester for $160, the brick to be loaded by them at Evansville on a barge belonging to it, and then to be towed by it up to Rochester. The contract was made by telephone, and afterwards confirmed by letter. While the boat I. N. Hook was going up the river the barge struck a hidden snag and was sunk. Bassett & Stone then filed this suit against the company to recover for the loss of the brick alleging that it was a common carrier, and that the brick were lost by its negligence. The allegations were denied, and on final hearing the court refused to submit to the jury whether the defendant was a common carrier, and on the question of negligence the jury found for the defendant. The plaintiffs appeal.

The only question which need be considered on the appeal is whether there was sufficient evidence to go to the jury on the question whether the defendant was a common carrier. The proof on this subject is as follows: J. L. Dent testified as follows: "I requested plaintiffs to ship their stuff from Evansville to Rochester with defendant because I had done considerable shipping with them on Green river, and the defendant had requested me to get the company any business I could. *** I did considerable shipping with the defendant on the Hook and Wilford and other boats on Green river. At the time I represented a fertilizer company. I shipped my fertilizers on their boats at so much per ton, to be delivered at different points on Green river; freight being paid by the parties receiving it in some cases and by me in some cases. I have known the defendant's boat to carry passengers, flour, chickens, eggs, oil, and other goods and merchandise for merchants doing business along the river." Noah Daughety made these statements: "I am wharfmaster at Morgantown Ferry. The defendant operated towboats on Green river up to the time they went out of the river. They did the business of common carriers. They brought freight to my wharf and took freight from there. They did this in 1900 and 1901. The boats were the Hook and Carson." Cross-examined: "Witness said they had no regular times for coming and going, no fixed terminals. Their chief business was towing ties and coal. Most of freight brought by defendants was in empties returning from towing coal to Bowling Green." W. H. Fuller testifies as follows: "I was wharfmaster at Morgantown wharf from -- till --, 19--. I know the defendant company. They were doing business on Green river between Evansville and Bowling Green, and operated towboats. The I. N. Hook and J. T. Oarson were common carriers. They brought freight to my wharf from Bowling Green and Evansville, Ind. They received all the freight offered to them at my wharf." Cross-examined: "I remember they brought some drummer's trunks on a barge. They brought some brick for the town, and charged no freight for same. They would not land and take on freight and passengers regularly like other boats, but only occasionally. Their chief business was towing ties." In appellee's letter head was this: "Towing a specialty," and in letter to appellants it said: "This rate we gave you is confidential, and we would not like to hear it spoken of by outsiders." The proof for defendant by J. D. Render was as follows: "I am secretary and treasurer of the Aberdeen Coal & Mining Company. We owned the Hook and Carson. They were towboats, and operated on Green and Barren rivers. We did a general towing business. We only took freight by contract, and carried it on barges. We did not hold ourselves out to the public to take freight for all who wanted to ship, but only by private contract. George Fletcher applied to me to tow the freight sued for. He talked to me by telephone from Rochester. I offered to do it for $160, he to be responsible for barge and cargo. The contract was finally settled through Mr. Walker, my bookkeeper. I told him he was to be responsible for cargo and barge, and he (Fletcher) wanted to know if that was customary. I told him it was. Fletcher said he would let me know about it. I never talked to Fletcher at Leitchfield. I told Mr. T. F. Walker about it and went West, and Mr. Walker closed the trade. When I came home I learned the barge and material had been sunk. My company is not a common carrier. At the time the contract was made with plaintiff, we were under contract with the Evansville Grain Company to do all their towing, and were then engaged in towing their ties from Green and Barren rivers to Evansville, Ind. We had no fixed termini or times of arrival and departure. We did all towing by private contract. When not rushed by said grain company, we would sometimes bring some freight from Evansville in empties. We had no regular stopping places, but went direct to tie yards, and there loaded our barges. *** We did carry some fertilizer in barges to upper Green river for Mr. Dent. We carried same in empties, and in large quantities. We brought some trunks from Woodbury to Morgantown to accommodate some drummers." Cross-examined: "I have carried freight to Morgantown on several occasions with these boats along about the time the barge was sunk. I carried chickens and eggs from Millshed, Threlkel, Edgars, and Lock No. 5--all these landings, and took freight to them the same summer that the barge was sunk, and had done so before. I carried fertilizer for -- before the barge was sunk by my boat." Grace Davis, the pilot, testified as follows: "Occasionally she would tow a barge of stuff for others, in order to fill out her tow; and on this occasion she was towing a barge of brick. This occurred only a few times." Several other witnesses on behalf of the defendant gave in substance the same evidence, stating that the boats only carried occasionally a barge of stuff to fill out their tow, and that they were engaged by the Evansville Grain Company altogether.

In Varble v. Bigley, 77 Ky. 698, 29 Am. Rep. 435, it was held that a towboat is not a common carrier, but in that case the boat which was sought to be held liable had been simply hired to move some coal barges belonging to the plaintiff. The boat was simply furnishing the motive power. In the case before us the barge belonged to ...