East Tennessee, V. & G. R. Co. v. Kelly

• Decision Date: 14 October 1892
• Citation: 20 S.W. 312,91 Tenn. 699
• Parties: East Tennessee, V. & G. Ry. Co. v. Kelly
• Court: Tennessee Supreme Court

20 S.W. 312

91 Tenn. 699

East Tennessee, V. & G. Ry. Co. v. Kelly

Supreme Court of Tennessee.

October 14, 1892

Appeal from circuit court, Hamilton county; John A. Moon, Judge.

Suit by J. W. Kelly against the East Tennessee, Virginia & Georgia Railway Company. Judgment for plaintiff. Defendant appeals in error. Affirmed.

Caldwell J.

This suit was brought by J. W. Kelly before a justice of the peace to recover from the East Tennessee, Virginia & Georgia Railway Company the value of five barrels of whisky. He recovered judgment for $492, and on appeal the circuit judge sitting without a jury, affirmed the magistrate's judgment, adding interest thereto. The railway company has appealed in error, and in this court, as below, denies the liability either as common carrier or warehouseman. Kelly purchased five barrels of whisky in New York, and caused them to be consigned to himself at Chattanooga, his place of business. The East Tennessee, Virginia & Georgia Railway Company was the last carrier over whose line the goods passed. On the 24th of April, 1891, that company unloaded the whisky from its car, and stored the same in its depot at Chattanooga, where it remained until the morning of the 29th of the same month, when it was destroyed by fire. Kelly through his drayman, called at the depot, and demanded the whisky on the 25th, 26th, 27th, and 28th of April, generally twice a day, and was each time told by the company's agent that it was not there. How the fire was produced is not disclosed. Under these facts the railway company is not liable as a common carrier. Its carrier responsibility terminated when the goods were safely stored in its depot and before they were destroyed. Butler v. Railroad Co., 8 Lea, 32; Express Co. v. Kaufman, 12 Heisk. (last paragraph,) 165. We are aware that the authorities are in a state of irreconcilable conflict on this question, several of the states having followed the lead of Massachusetts in holding that the liability of the common carrier as such is ended when the transportation is completed, and the goods are safety stored; and several others having given their sanction to the doctrine announced in New Hampshire, to the effect that the carrier's responsibility continues until the consignee has had a reasonable opportunity, after the arrival of the goods, to receive them. Discussion of the respective considerations upon which the two rules are rested by their opposing adherents will not be indulged in in this opinion, since this court has heretofore adopted the Massachusetts rule, and no sufficient reason for changing the precedent already established is perceived. The cases of Butler v. Railroad Co., 8 Lea, 32, and Express Co. v. Kaufman, 12 Heisk. 165, have been followed in several important cases, the last of which was East Tennessee, V. & G. Ry. Co. v. Gettys, (decided at present term. ^[1] In 2 Amer. & Eng. Enc. Law, pp. 391-394, the two rules are stated, and many of the decisions in support of each cited. Tennessee is there erroneously referred to as one of the states adopting the New Hampshire doctrine. See, also, on same subject, Story, Bailm. § 543; Schouler, Bailm. (2d Ed. by Mechem,) §§ 367-374, inclusive. The last author, in section 370, correctly places Tennessee among the states following the Massachusetts rule. Then, as to these goods, at the time of their destruction, the railway company had ceased to be a common carrier with the liability of an insurer, and had assumed the less hazardous position of warehouseman, in which it was bound to use ordinary care and diligence only, and was responsible alone for the consequences of its negligence. Schouler, Bailm. §§ 101, 513; Lancaster Mills v. Merchants Cotton Press Co., 89 Tenn. 35, 36, 14 S.W. 317.

Is the railway company liable as warehouseman? If the loss resulted from its negligence as the proximate cause, yes; if not, no for the doctrine of proximate and remote cause applies here, as in any other case where negligence is the ground for action. The burden of showing negligence and its causal connection with the loss was upon the plaintiff. Schouler, Bailm, § 101; 89 Tenn. 35, 36, 14 S.W. 317; Louisville & N. Ry. Co. v. Manchester Mills, 88 Tenn. 653, 14 S.W. 314; Hutch, Carr. (2d Ed.) § 767. In this case there is no proof as to the cause of the fire, hence the defendant is not chargeable with negligence in causing it. Mere proof of the fire and destruction of the goods does not show negligence. Louisville & N. Ry. Co. v. Manchester Mills, 88 Tenn. 653, 14 S.W. 314; 89 Tenn. 36, 14 S.W. 317. Therefore, if the plaintiff succeed, he must do so without reference to the cause of the fire. It is distinctly shown that he demanded the goods several times, and that the defendant, without sufficient excuse, failed to deliver them. That alone makes a clear case of negligence; but, manifestly, that negligence did not cause the fire. Did it, nevertheless, proximately cause the loss of the goods? The fire and the loss may have had different causes. The fire destroyed the goods, but it does not follow that the cause of the fire and the cause of the loss to the plaintiff were one and the same in legal contemplation. They may have been entirely different. The failure to deliver the goods when demanded did not cause the fire, but it did cause the loss, in such sense that they would not have been lost without that failure. Had the defendant delivered the goods, they would have been removed, and the loss averted. The neglect and wrongful detention of the goods, and that alone, exposed them...