Gregg v. Illinois Cent. R. Co.

• Decision Date: 26 October 1893
• Citation: 147 Ill. 550,35 N.E. 343
• Parties: GREGG v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

147 Ill. 550

35 N.E. 343

GREGG

v.ILLINOIS CENT. R. CO.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from appellate court, first district.

Trover by James Gregg against the Illinois Central Railroad Company on account of the alleged conversion by the defendant of five car loads of corn. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Affirmed.Otis & Graves, for appellant.

C. V. Gwin, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

On the 25th of July, 1888, appellant shipped by appellee's road two car loads of corn, in bulk, from Lodi, Ill., and on July 28, 1888, three car loads from Ludlow, Ill., consigned, ‘Order Jas. Gregg & Co., Augusta, Georgia,’ with directions to ‘notify Dunbar & Co.’ The record shows that the five car loads of corn reached Augusta during the period from August 2 to August 11, 1888, over the Georgia Railroad, the terminal connecting line of railway over which the corn was transported. The bills of lading were attached to drafts, at 10 days' sight, on Dunbar & Co., which were discounted by appellant in Chicago. On the 11th day of August, 1888, Dunbar & Co. wrote appellant as follows: ‘Augusta, Ga., 11, 1888. Messrs. Gregg, Garvey & Co., Chicago, Ill.-Dear Sirs: Inclosed please find certificate for weight of cars No. 11,724 and No. 3,038, for which you asked, and also for car 2,500, I. C., which loses heavily. No demand for grain to-day. Market is stocked. A large lot of stuff was brought here prior to the advance in freight, and this being our tightest money season, anyway, everybody has been cramped to pay for it. Our banks protected drafts, and loaned on until they too became cramped, and refused to lend any more. The situation is worse than last season, when, you remember, the same thing occurred. The best way we can see out of the difficulty in meeting your drafts, which begin to mature next week, is to draw back on you for them as they mature, and then let you make new 10-day drafts on us; and in this way we can gain about 15 or 16 days, and in that time hope to place a great part of it. We can arrange to take care of the stuff, itself, without having to keep on track. We will begin to draw on Monday. We await your favors. Yours, truly, Dunbar & Co.’ This suggestion was followed; Dunbar & Co. drawing upon appellant to meet the drafts of appellant upon them as they matured, and attaching the bills of lading issued to appellant, and originally attached to his drafts, as collateral to the drafts thus drawn by Dunbar & Co. upon appellant. These drafts were paid by appellant in Chicago, and other drafts, at 10 days' sight, with the bills of lading attached, were drawn on Dunbar & Co. Dunbar & Co. were notified, upon the arrival of the grain, and requested its storage with them, they being warehousemen and brokers at Augusta, Ga. The corn not having been taken by the consignee, the Georgia Railroad finally stored the same in Dunbar & Co.'s warehouse, taking their warehouse receipts to the Georgia Railroad Company, the last receipt being dated August 23, 1888. On September 10, 1888, there occurred an extraordinary and unusual flood, which submerged the corn in the warehouse, and damaged it. Dunbar & Co. sold $1,386 worth of the damaged corn. The balance proved a total loss. This suit is brought to recover the value of the corn lost and damaged.

SHOPE, J., (after stating the facts.)

The principal question presented is whether the relation of appellee to the corn shipped by appellant was that of a common carrier, at the time it was damaged. It is suggested, rather than argued, that appellee, as the initial carrier, limited, by contract, its liability for damages to such as might occur while carrying upon its own lines of road, and that it is not, therefore, liable for the conduct of connecting lines, over which the freight was carried to its destination. In the view we take of the case, it is unnecessary to discuss or determine this question. See Railroad Co. v. Frankenberg, 54 Ill. 88;Chicago & N. W. Ry. Co. v. Northern Line Packet Co., 70 Ill. 217;Railway Co. v. Wilcox, 84 Ill. 239; Railroad Co. v. Jaggerman, 115 Ill. 407, 4 N. E. Rep. 641. Conceding the liability of appellee for the acts and misfeasance of connecting lines, we are of opinion the relation of common carrier had ceased before injury to the property occurred. The law is well settled, in this state, that the liability of a railroad company as a common carrier of freight ceases upon the unloading of the goods from the car at the place of destination, and placing them in a safe and secure warehouse, or where the carrier is not required, in the usual course of business, or expected, to remove the freight from the car,-as in the case of grain in bulk, coal, lumber, and the like,-by delivering the car, in a safe and convenient position for unloading, at the elevator, warehouse, or other place designated by the contract, or required in the usual course of business, or, if no place of delivery is thus designated or required, on its side track, in the usual and customary place for unloading by consignees. Porter v. Railroad Co., 20 Ill. 407; Railway Co. v. Alexander, Id. 23; Richards v. Railroad Co., Id. 404; Railroad Co. v. Scott, 42 Ill. 132;Transportation Co. v. Hallock, 64 Ill. 284; Railway Co. v. Mitchell, 68 Ill. 471;Railway Co. v. Bensley, 69 Ill. 630;Cahn v. Railway Co., 71 Ill. 96;Transportation Co. v. Moore, 88 Ill. 136; Railway Co. v. Nash, 43 Ind. 423; Railway Co. v. Felder, 46 Ga. 433.

In the case at bar, upon the arrival of the corn at its destination,-there being no designated warehouse or place of delivery, and it not being shown that, in the usual course of business, the carrier was bound to deliver at any particular place,-it is to be presumed that the consignee was to receive the same on track; and, in the event of a failure of the consignee to designate a place of delivery, the contract of carriage would determine when the cars, in proper and safe condition, were placed at the usual and ordinary place of keeping or storing cars containing like freight, upon the railroad company's tracks, and where they could be safely and conveniently unloaded. In all such cases the question to be determined is whether anything remains to be done by the carrier in completion of its contract to safely carry and deliver the goods at the place of destination. If there is, its liability as carrier continues. If there is not, and the goods remain in possession of the carrier, its liability in respect thereof, when not varied by contract or usage, is as warehouseman, only. Railroad Co. v. Warren, 16 Ill. 502;Peoria & P. U. Ry. Co. v. United States Rolling Stock Co., 136 Ill. 643, 27 N. E. Rep. 59; East St. Louis Connecting Ry Co. v. Wabash, St. L. & P. Ry. Co., 123 Ill. 594, 15 N. E. Rep. 45; Missouri Pac. Ry. Co. v. Chicago & A. Ry. Co., 25 Fed. Rep. 317; Independence Mills Co. v. Burlington, C. R. & N. Ry. Co., 72 Iowa, 535, 34 N. W. Rep. 320;Goold v. Chapin, 10 Barb. 612; Ang. Corp. 291; Hutch. Carr. § 356. This freight was consigned by appellant, to his own order, to Augusta, Ga., with instructions to the carrier to ‘notify Dunbar & Co.’ There is no pretense that the grain was not properly carried, in good order, to its destination, and was there in proper position for delivery to the consignee in apt time, or that notice was not given to Dunbar & Co. promptly, upon the arrival of the freight. The carrier had completed its contract of carriage, and obeyed the instructions of the consignor, in giving notice, in apt time, of the arrival of the grain at destination. It is not shown when the various consignments of corn arrived in Augusta, but it is clear that one of the cars-2,500 I. C.-had reached its destination before the 11th of August, 1888; and it is also apparent that all five of the cars containing the corn sued for arrived before the 23d of August, 1888. But how long prior to these dates the shipments were completed, does not appear.

It is insisted, however, that the contract of carriage was not completed, because notice of the failure of Dunbar & Co. to take the corn was not given to the consignor; and it is shown that the course of dealing was for appellee to notify appellant of the failure of the consignee, or person to be notified, to take the shipment, and it is insisted that appellant was justified in relying upon such notice being given, and that, if notice had been given, he could have cared for the corn, by storing it, or shipping it elsewhere, in which event the loss would not have occurred. We do not find it necessary to determine whether, under the course of dealing shown, appellee would be liable for failure to give such notice. The loss or injury to the corn occurred by the flood of September 10th, following the arrival of the corn in Augusta; and, conceding that the flood was a cause for which the railroad company was not responsible, it is said that the negligence of the railroad company in not giving such notice contributed immediately to the loss, and it is therefore liable. This contention is without force, for the reason that it is affirmatively shown that appellant was notified by Dunbar & Co. Dunbar & Co. were not entitled to receive the corn, except upon payment of the drafts drawn against it, and production of the bills of lading. Railroad Co. v. Herndon, 81 Ill. 143;Joslyn v. Railway Co., 51 Vt. 92; Railway Co. v. Stern, 129 Pa. St. 24, 12 Atl. Rep. 756;Watson v. Tunnel Line Co., 13 Mo. App. 263; Wood, Ry. Law, p. 1594. By the letter of Dunbar & Co. of August 11th, as we have seen, appellant was notified of the arrival of at least one of the cars of corn in controversy, and that, because of the condition of the market, Dunbar & Co. would be unable to meet the drafts drawn against the shipment. Thereupon, the brokers suggested, as will be seen, a plan by which the time could be extended 15 or 16...