Carolina Spruce Co. v. Black Mountain R. Co.

• Decision Date: 11 February 1918
• Citation: 201 S.W. 154,139 Tenn. 137
• Parties: CAROLINA SPRUCE CO. v. BLACK MOUNTAIN R. CO.
• Court: Tennessee Supreme Court

201 S.W. 154

139 Tenn. 137

CAROLINA SPRUCE CO. v. BLACK MOUNTAIN R. CO.

Supreme Court of Tennessee.

February 11, 1918

Appeal from Chancery Court, Washington County; Hal H. Haynes Chancellor.

Bill for injunction by the Carolina Spruce Company against the Black Mountain Railroad Company, with cross-bill by defendant. Decree for complainant in part, from which this appeal is brought. Modified.

WILLIAMS J.

The Carolina Spruce Company, a private corporation, having purchased a large boundary of timber in Yancey county, N. C was desirous of securing railway facilities for its development. The tract was located about 20 miles from the Carolina, Clinchfield & Ohio Railway, a trunk line, and its development required the construction by the Spruce Company or another, of a tap-line railroad over which the forest products, such as lumber, logs, acid wood, etc., might be transported to some junction point on the Carolina, Clinchfield & Ohio Railway. The timber tract was located at or near the base of Black Mountain (Mt. Mitchell), one of the tallest peaks east of the Rocky Mountains, and a tap line to reach it would have to traverse a very rough territory. In order to induce the construction of such a line to the boundary, the Spruce Company offered a bonus to aid the Black Mountain Railway Company in the large expenditure of money such construction would call for.

Omitting to even outline previous contracts entered into in relation to the matter by the complainant and the defendant railway, and alleged breaches thereof by the Spruce Company, we believe it to be sufficient to say that on September 19, 1912, the two entered into an agreement, one of the clauses of which reads as follows:

"The railway company agrees that it will proceed forthwith to construct and place in operation a standard guage line of railway from a point of connection with the line of the Carolina, Clinchfield & Ohio Railway at Black Mountain Junction to Pensacola, along the route to be selected by the railway company, * * * so that material and machinery of the Spruce Company, necessary for the erection of a sawmill and plant of the Spruce Company, may be transported over the same not later than March 1, 1913, and that the road will be in condition for general traffic not later than April 1, 1913 (later changed by the parties to May 1, 1913), unless prevented by weather conditions or other causes beyond its control."

As a part of the bonus sum, a note of $10,000 was executed by the complainant company to the railway company, which note was secured by a pledge of first mortgage bonds of complainant. At the maturity of the note there was a claim of default in payment, and the collateral was advertised for sale.

The bill of complaint of the Spruce Company was filed to enjoin the sale of the collateral, and it challenged the right of the railway company to collect the note by an allegation that the contract had not been complied with by the railway company. It was alleged that the latter company was obligated to build and equip its line by a date fixed, but had itself made default and failed to earn the bonus, and had seriously injured complainant. Other allegations in the bill and allegations and denials in an answer raised the issues discussed in the body of this opinion.

A cross-bill was filed by the railway company praying for appropriate relief.

In point of fact the railroad did not reach the terminus at or near Pensacola until after March 1, 1913, to wit, on March 22d or 24th of that year. Much proof was introduced touching the stages the construction work had reached on that date and later dates referred to below.

The railway company defended on the ground that a strict compliance within the contract limits of time (March 1, 1913, for transportation of sawmill outfit, and May 1st, for general traffic) was "prevented by weather conditions or other causes beyond its control"; and it specified: (a) Bad weather in the winter of 1912-13; (b) scarcity of labor; (c) difficulty in getting a supply of ties for the laying of permanent track; and (d) unanticipated trouble and delay encountered in a cut called Summit Cut by reason of a peculiar mud or clay called "gumbo" discovered therein.

We agree with the chancellor in his findings of fact that specifications (a), (b), and (c) did not operate to allow the railway any extension of time for the construction work. So concurring, we shall not burden this opinion by a discussion of these questions of fact.

The chancellor expressed doubt as to the merits of the last specification (in relation to the "gumbo" material in the cut), whether it operated to extend the time. He resolved the doubt, however, against the railway company on the theory that the phrase, "unless prevented by other causes beyond its (the railway company's) control," refers only to causes which were the acts of God, or of public authority. Is the chancellor's view sustainable?

By "act of God" is meant a happening, due directly and exclusively to a natural cause or causes in no sense attributable to human agencies, which happening is not to be resisted or prevented by the exercise of such foresight, prudence, diligence, and care as the situation of the defendant party may reasonably have called it to exercise.

Since human agency or intervention is to be excluded from creating or entering as an element into such an act causing injury, we have for consideration whether the contract phrase is the legal equivalent of the "act of God," as the chancellor held. We are of opinion that the phrase comes nearer to being synonymous with "unavoidably prevented," and that it can hardly be the equivalent of what is called the act of God; but it cannot mean less than that there must have interposed some hindrance which the railway company, as the actor party, could not foresee or overcome by the reasonable exercise of its powers and the use of the means and appliances that were, or in the exercise of commensurate care should have been, available. What is meant is that the happening must not have been occasioned in any degree by the want of such foresight, care, and skill as the law holds one in like circumstances bound to exercise. The words "beyond control" fairly imply a pledge to exercise human agencies to the point of excluding negligence under the above test, and if this be true human agencies are not excluded from consideration as factors.

In Chicago, etc., R. Co. v. U. S., 194 F. 342, 114 C. C. A. 334, it was said in respect of the closely related phrase "unavoidable cause":

"An * * * 'unavoidable cause' * * * is a cause which reasonably prudent and cautious men under like circumstances do not and would not ordinarily anticipate and whose effects under similar circumstances they do not and would not ordinarily avoid."

The paucity of decisions construing the words "beyond control" and "unavoidable cause" in commercial and building contracts must be remarked.

Briefly summarized the conditions encountered in the cut referred to were as follows: A material called "gumbo," a blue mud or clay, was found in large quantity. This is described in the proof as being a very peculiar formation, much harder to remove than rock, requiring three or four times as long to remove, and costing about four times as much. Various appliances were used in efforts to take out this mud or clay. One witness testified:

"That he worked at Summit Cut from the time it was commenced until it was finished; that in the north end of the cut they struck a blue pipe clay, which was the biggest vein of this material that he ever saw; that it was blue, black mud, as stiff as it could be and so hard to handle that you could not do anything with it; that about half of the cut was composed of this clay; that dynamite would shoot it up in blocks--that is, if you loaded it heavy enough you could shoot it up in blocks, as big as a wagon bed; that it would spread it out and you would have to cut into it with shovels and cut it up and load it on the car; that you would have to take a paddle or your hand to pull it off the shovel; that they kept a tub of water there to dip the shovels in so as to make the mud slip off; that you had to chain the dump cars to the rail in order to keep it from turning them over when they dumped the material because the material would stick to the cars and you would have to take a mattock and rake it off of the bed of the car; that when they first began the cut they commenced on each end and put in plows and scrapers to scrape it out and ran them as long as they could; that when they struck this pipe clay the horses mired down in it and they had to quit that."

The use of wheelbarrows and then of a steam ditcher was resorted to, but the mud would stick to the dipper of the ditcher, and no speed could be made with it. A laborer would stick a pick in the clay, and it would take both of his hands to get it out without bringing any material with it. When it rained the clay would spread out and submerge the track, which had to be jacked up and other timbers placed under it. It was a difficult matter to hold laborers at work; at first they were paid a wage of a time and a half, and before completion they were paid double time for work in this cut; and even with that the crew was constantly changing; few would work in the cut over a week at a time, making it necessary to carry a number of men as a reserve force. Work was prosecuted day, night, and on Sundays in efforts to remove this material.

The peculiar waxiness, stubborn nature and large quantity of this deposit were beyond reasonable anticipation, found as it was deposited in a hill, and we think the failure to discover and overcome the difficulties incident to the deposit was not due to...