Irvin v. Nashville

• Decision Date: 30 June 1879
• Citation: 34 Am.Rep. 116,1879 WL 8484,92 Ill. 103
• Parties: ALEXANDER H. IRVINv.NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY CO.
• Court: Illinois Supreme Court

92 Ill. 103

1879 WL 8484 (Ill.)

34 Am.Rep. 116

ALEXANDER H. IRVIN

v.NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY CO.

Supreme Court of Illinois.

June Term, 1879.

WRIT OF ERROR to the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Mr. SAMUEL P. WHEELER, for the plaintiff in error, in support of the proposition that a partnership did exist in this case, cited Champion v. Bostwick, 11 Wend. 571; 18 Id. 175; Fairchild v. Slocum, 19 Id. 329; Nashua Lock Co. v. The Worcester and Nashua Railroad Co. 48 N. H. 339, and cases there cited.

Messrs. GREEN & GILBERT, for the defendant in error, after reviewing the authorities cited in behalf of the plaintiff in error, argued that it is contrary to reason, principle and authority to hold that an intermediate carrier, who has neither specially contracted for the transportation of goods, nor received, nor lost them upon its own road, is responsible either as an implied partner or even joint contractor, simply because it is one of a series of connecting roads carrying through freights upon an agreed rate divided between the several connecting roads proportionate to actual separate haul, or service of each road, upon its own line and at its own expense, citing Darling v. B. W. & W. R. R. Corp. 11 Allen (Mass.) 295; Crofton v. Baltimore and Ohio Railroad Co. 1 MacArthur, 492; Hartan v. Eastern Railroad Co. 114 Mass. 44; Elsmore v. The N. R. R. Co. 23 Conn. 457; Perkins v. P. S. & P. R. R. & Transp. Co. 33 Id. 116; Converse v. N. & N. Y. Co. 47 Maine, 573.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of replevin, by the Nashville, Chattanooga and St. Louis Railway Company, against Alex. H. Irvin, to recover possession of a wharf-boat, claimed by the former as its property, and which had been seized by the latter, as sheriff, under certain writs of attachment issued against “Green Line,” as the property of “Green Line.” The declaration contained the usual counts in cepit and detinet; and the pleas, whereon issue was joined, were non cepit, non detinet, property in defendant, property in “Green Line;” also a plea that defendant, as sheriff, took the wharf-boat as the property of “Green Line,” by virtue of said writs of attachment, and that the same was the property of ““Green Line,” and subject to levy, etc.

The cause was tried by the court below without a jury, who found the issues for the plaintiff and gave judgment accordingly. The defendant brings the case here by writ of error, and asks a reversal of the judgment upon two grounds, viz:

First, that under the attachment laws of Illinois, suits may be brought against joint defendants by such names, styles or titles as they are usually known; that the writs of attachment, by virtue of which the wharf-boat was levied on, and under which defendant justifies, were against “Green Line;” that “Green Line” was the name and style of a partnership composed of a number of railroads, of which plaintiff was one; and that, as the individual property of each copartner is liable for the firm debts, the plaintiff's wharf-boat was subject to the attachments.

Second, that plaintiff suffered “Green Line” to have possession, and exercise control over the wharf-boat in such a way and to such an extent as to estop a denial of ownership in “Green Line.”

It appears, from the record, that the cause of action upon which the writs of attachment in question issued against “Green Line,” was loss of grain delivered to one W. T. Osburn, agent, Cairo, Illinois, in February, 1873, under and in pursuance of certain bills of lading by him executed, “to be transported from Cairo, Illinois, to the wharf-boat at Hickman, Ky., on board the good steamboat called Glasgow, (the dangers of river, collision, explosion and fire excepted,) thence by the N. & N. W., and N. & C. railroads, and connecting railroads, (subject to the conditions of their several freight regulations) to be delivered, etc.,”--to certain consignees named, at Columbus, Ga., and other points south--“he or they paying freight at the rate” in the bill of lading specified; which was a certain fixed sum per 100 lbs. At the top of the bills of lading was the heading “Green Line,” and there also appeared the words ““Through rates to,” etc., there then following twenty-five enumerated places in different southern States, some one of which was the place of destination named in the bills of lading.

At the time these bills of lading were executed by Osburn, the Nashville and Chattanooga Railroad Company, (now Nashville, Chattanooga and St. Louis Railway Company, and plaintiff in this suit,) owned and was operating its road, the Nashville and Chattanooga Railroad, from Chattanooga to Nashville; and the Nashville and Northwestern Railroad Company owned and was operating its road, the Nashville and Northwestern Railroad, from Nashville to Hickman, Ky., on the Mississippi river; and the steamboat Glasgow was engaged in transporting freights from Cairo to Hickman, for shipment via the Nashville and Northwestern road.

It does not clearly appear whether she was in the employ of the Northwestern Railroad Company, or ran independently. It does, however, appear that she was not in the employ of the Nashville and Chattanooga Railroad Company. The grain in question was lost about the 8th day of February, 1873, by the steamboat Glasgow, by the sinking of her barge, Eliza, the boat never having reached Hickman. The proof is, that Osburn, who signed the bill of lading as agent, was the agent of the Nashville and Northwestern Railroad Company, employed and paid by that Company, and that he never was agent for the Nashville and Chattanooga Railroad Company, and had no authority from that company. Prior to and at the time of the execution of the bills of lading and loss of the grain in question, the Nashville and Chattanooga Railroad Company had no agent at Cairo, nor had it done business there; and the wharf-boat in question, built and owned by that company, was then, and had been since its receipt from the builders in November, 1872, used by that company at Johnsonville, on the Tennessee river, and in the possession of one Capt. James F. Miller as its agent. About a month after the loss of the grain in question, the Nashville and Chattanooga Railroad Company on March 1, 1873, transferred its said wharf-boat...