Empire Refineries, Inc. v. Guaranty Trust Co. of New York

Citation271 F. 668
Decision Date17 March 1921
Docket Number5697.
PartiesEMPIRE REFINERIES, Inc., v. GUARANTY TRUST CO. OF NEW YORK et al. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

George A. Henshaw, of Oklahoma City, Okl. (A. Carey Hough, of Oklahoma City, Okl., and Warren T. Spies, H. O. Caster, Hayes McCoy, and S. N. Hawkes, all of Bartlesville, Okl., on the brief), for appellant.

Thomas T. Railey, of St. Louis, Mo. (Edward J. White, of St. Louis Mo., Lansing P. Reed, of New York City, and Allen C. Orrick of St. Louis, Mo., on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

January 17, 1917, appellant shipped on revenue billing from Cushing Okl., to St. Louis, Mo., a tank car load of gasoline routed over the lines of the A., T. & S.F. Ry. and Missouri Pacific Ry. The tank car in which the gasoline was shipped was owned by appellant, and under the tariff provisions of the railways it was entitled to receive three-fourths of a cent per mile on loaded movements of the tank car. Instead of delivering the car and contents to the consignee at St. Louis, the Missouri Pacific Railway, then being operated by a receiver tendered the car to the Wiggins Ferry at St. Louis, on March 18, 1917, which in turn delivered the same to the Clover Leaf Railway, with copy of waybill of another car showing destination Avondale, N.J. The car and contents were transported to Avondale, and the car was not returned to St. Louis till June 17, 1917. Appellant presented a claim to the receiver in the sum of $297.70 for the rental value of the car for the time it was deprived of its use. The claim was heard by the special master and disallowed, and his action was confirmed by the court.

The measure of damage or the amount thereof is not questioned. It does not appear from the record that the railway company had any authority to use the tank car except for the transportation of the gasoline to St. Louis. Appellant contends that the railway company was a special bailee of the car for hire for the purpose of transporting the contents thereof to the consignee at St. Louis, and is liable for any damages resulting from an unauthorized use of the same. Appellees admit that they would be liable if the car in question had been transported under revenue billing at the tariff rate of 10 cents per mile, but contend that under the facts of this case they are only liable for the amount fixed by the tariff provision above mentioned. It is also contended that the question as to whether the railway company is liable or not under the circumstances above detailed is a question for the Interstate Commerce Commission to decide, and therefore this court has and the court below had no jurisdiction of the case.

The cause of action is one to recover damages for a breach of the contract of bailment, a matter over which it is clear the Commission has no jurisdiction. We are of the opinion that the tariff provision of three-fourths of a cent per mile was not intended to apply and did not apply, except as the car moved pursuant to instructions of appellant; that is, from Cushing to St. Louis. We now come to the liability of the railway company for the unauthorized use of the car. In this connection we must bear in mind that the car, so far as the record shows, was not delivered to the railway company for its general use as is frequently done by corporations and associations owning private tank cars. The car was bailed for a specific purpose for the mutual benefit of appellant and the railway company usually called a bailment for hire. The terms of the contract of bailment, express or implied, determine the rights, duties, and liabilities of the parties. In the absence of a special contract defining the relative rights of the bailor and bailee, the law of bailment lays down certain general rules of liability which control their relationship. Section 21, R.C.L. vol. 3; 6 C.J.p. 1110.

'The bailee is liable for loss resulting from breach of his contract to keep the property in a particular manner or at a particular place, or to use it only for a particular purpose or to a specified extent, or in a particular manner, or to return it at a particular time, or other special stipulation in regard to the property, without regard to whether he has been negligent.' 6 C.J. § 42. Kennedy v Portman, 97 Mo.App. 253, 70 S.W. 1099; Lilley v. Doubleday, 7 Q.B.D. 510; Butler v. Greene, 49 Neb. 280, 68 N.W. 496; Ferguson v. Porter, 3 Fla. 27; Evertson v. Frier (Tex. Civ. App.) 45 S.W. 201; Cartlidge v. Sloan, 124 Ala. 596, 26 So. 918; Carll v. Goldberg, 59 Misc.Rep. 172, 110 N.Y.Supp. 318; Cochran v. Walker (Tex. Civ. App.) 49 S.W. 403; J.T. Stark Grain Co. v. Automatic Weighing Mach. Co., 99 S.W. 1103. [1A] In Ferguson v. Porter, supra, bailee received a shipment of arrowroot, which he agreed to send to New Orleans for sale, but instead sent it to Charleston, and it was lost en route. He was held liable for the loss consequent upon his departure from instructions. In Butler v. Greene, supra, the bailee was compelled to move the property by the owner of the place at which he had agreed with the bailor to keep it. It was held that he was not relieved from liability for such removal. In Evertson v. Frier, supra, a bailee was held liable, regardless of the exercise of care, for the death of a horse...

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5 cases
  • W.L. Shepherd Lumber Co. v. Atlantic Coast Line R. Co.
    • United States
    • Supreme Court of Alabama
    • 24 Marzo 1927
    ......Co. (D.C.) 274 F. 687, 691. Compare Empire Refineries v. Guaranty Trust Co. (C.C.A.) 271 ... truly, W.L. Shepherd Lumber Co., Inc., by Traffic Manager. RCC AR AM.'. . . ......
  • Security Trust Co. v. Long
    • United States
    • United States State Supreme Court of Missouri
    • 2 Marzo 1929
    ...license and duty as if the control over the property was usurped without any bailment. In this regard it is said in Empire Refineries v. Guaranty Trust Co., 271 F. 668, l. c. 669: "The bailee is liable for loss resulting breach of his contract to keep the property in a particular manner or ......
  • Schnitzer v. Panhandle Lumber Co.
    • United States
    • United States State Supreme Court of Washington
    • 3 Agosto 1942
    ......382, § 2190; Empire. Refineries, Inc., v. Guaranty Trust Co. of New York, 8. Cir., 271 F. 668; Patterson v. New ......
  • Burlington Northern Inc. v. United States
    • United States
    • Court of Federal Claims
    • 14 Julio 1972
    ...of lading. Instead, the car was used in an entirely unauthorized manner. This question arose in Empire Refineries, Inc. v. Guaranty Trust Co. of New York et al., 271 F. 668 (8th Cir.1921), in which a tank car owned by the shipper and filled with gasoline was delivered to the railroad compan......
  • Request a trial to view additional results

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