Merchants' Wharfboat Association v. Wm. Wood & Co.

• Decision Date: 25 April 1887
• Parties: MERCHANTS' WHARFBOAT ASSOCIATION v. WM. WOOD & CO
• Court: Mississippi Supreme Court

2 So. 76

64 Miss. 661

MERCHANTS' WHARFBOAT ASSOCIATION v. WM. WOOD & CO

Supreme Court of Mississippi

April 25, 1887

April 1887

APPEAL from the Circuit Court of Washington County. HON. J. M. WYNN Judge.

The case is stated in the opinion of the court.

Judgment reversed.

Phelps & Skinner and Campbell & Starling, for the appellant.

1. There is no conflict in the authorities as to the rule of damages--causa proxima non remota spectatur--and that it is applicable to actions both in contract and in tort. In both the damage must be the natural result of the act or breach and as to contracts must have been in the contemplation of both parties where most broadly applied, or in tort must have been such as could reasonably have been foreseen and avoided.

In actions in tort the adjudications have established a plain practical criterion to determine what are remote and what are proximate results under the rule, viz.:

Where there is a succession of continuous events, where each is the direct effect of the next preceding one, and thus the last one is traceable back to the negligent act or omission, the damage is held to be proximate.

Where the injury is not produced as above by a succession of connected results reaching back to the negligent act or omission, but is produced concurrently with the negligent act by some intervening, independent, and sufficient direct cause, the damage will be held to be remote. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469; Cooley on Torts 68 and 77; 1 Sutherland on Damages 56 and 57.

The case at bar is a most apt illustration of the latter class. For if it were true that the appellant was either negligent in its custody of the cotton, or violated an implied agreement to ship within a reasonable time, such acts or omission manifestly had no sort of connection, natural or otherwise, with the oil mill fire, which therefore as a new, intervening, and independent cause must be accounted the proximate cause of the loss.

We are entitled to the benefit of this rule unless there is some exception which would entail upon a wharfinger a liability for a failure to exercise a sound discretion in the shipment of property, equal to that of an insurer against all possible loss, even to fire by a stroke of lightning.

It will be observed that the contention of appellee is that while the act complained of may not have been the direct or proximate cause of the loss, that yet it produced the opportunity for the loss; that without it the loss would not have occurred, and appellant should be liable for it. The following authorities repudiate this pretension.

In Morrison v. Davis, 20 Pa. St. 171, the master of a canal boat was negligent in transporting the goods by starting with a lame horse. The boat was overtaken by an unexpected flood and destroyed. The negligent breach of contract to transport in a reasonable time undoubtedly produced the occasion or opportunity of loss, but it was held too remote.

In Denny v. N.Y. C. R. R. Co., 13 Gray 481, the carrier was guilty of negligent delay of six days in transporting goods, and while in his depot at destination the goods were destroyed by flood. Had they been carried in time they would not have been destroyed. Held too remote. See also Daniel v. Ballinstein, 23 Ohio St. 523; Hoadley v. Northern T. Co., 115 Mass. 304.

Finally, the case of Memphis Railroad Co. v. Reeves, 10 Wall. 176, is precisely in point, and the opinion was pronounced by Justice Miller. The defendant had made not an implied contract only, but an express contract to start on his voyage at a certain time. His negligent or willful failure to do so produced the opportunity by which the loss occurred. The court cites the above cases of Morrison v. Davis and Denny v. R. R. Co., and adopts their doctrines expressly as sound rules of law, and says, "It is the third instruction given by the court to the effect that if the defendant had contracted to start With the tobacco the evening before, and if the jury believe if he had done so the train would have escaped injury, then the defendant was liable." The court proceeds to condemn the instruction, because "Even if there had been such a contract the failure to comply would have been only the remote cause of the loss."

We lay stress on these cases, for surely if a common carrier cannot be held for remote losses under the doctrines of public policy so severely applied to them by the law, what shadow of right can the appellee have as against a wharfinger?

An earlier New York case, Hamilton v. McPherson, 28 N.Y. 76, holding the doctrine we maintain is cited with approval by our own court in V. & M. R. R. Co. v. Ragsdale, 46 Miss. 480. The carrier had received notice to forward grain. He failed to do so and the grain was injured in consequence by heating in the warehouse. It is certain the negligence of the railroad--or more, its disobedience--produced the occasion of the loss, but the court held it too remote. The same case cites with like approval on page 481 Ashe v. DeRoset, 5 N.C. 301, which was a case of a custodian, a mill-owner, whose negligent delay in hulling rice was the occasion of its being burned in his mill. The damage was also held too remote. These cases express the views of our court in the matter, and in view of all the authorities we believe we have the right to conclude that there is nothing in this case to make it an exception to the general rule against remote damages.

2. The appellee has shifted his ground several times to find some plausible ground for recovery. First, they declare in contract, then abandon the contract and proceed in tort for want of care in the cotton yard, and, lastly, complain because it was not shipped out of the yard by the Richardson to avoid danger of fire.

To this we reply: First, that the fact that the cotton was not destroyed by any of the dangers of the yard complained of is a full answer to such position as a matter of law, overriding any conceptions the jury may have formed in the case. Like the stowage of gunpowder in the case supra, the loss did not grow out of any such supposed dangers. Second, the railroad company, as agent of the shipper, delivered the cotton on their cars in the yard there to be unloaded and held for shipment, and if the yard was dangerous the appellee should not recover because of W.'s contributory negligence. 24 Am. Dec. 158; Gibson v. Hatchett, 24 Ala. 201.

"So where it is claimed that goods have been injured by stowage in an improper place, the warehouseman may show that the plaintiff himself selected the place." Brown v. Hitchcock, 128 Vt. 452.

The court will observe that there was no evidence given of any increase of danger between the time the cotton was delivered by the railroad company and its loss.

3. The next defense made by appellant is that the cotton was received under the contract proven, and that it was bound to hold it for the Choteau.

4. Our third defense is that the appellant was not in duty bound to ship on the Sabbath day. And the Richardson, which arrived and departed on Sunday, is the only boat which passed down before the fire.

We ground this defense on two propositions: first, the statute, § 2949, prohibits such labor on Sunday; second, aside from the statute, a man is not required to discharge secular duties on that day, except possibly in manifest and imminent danger unavoidable by any other means.

R. B. Campbell and W. G. Phelps, of counsel for the appellant, argued the case orally.

Leroy Percy, for the appellees.

1. Appellant sought to avoid the consequences of his negligence in not shipping the cotton on the Richardson by the fact that she arrived and departed from Greenville on Sunday. This position is untenable. The evidence shows that the fact that it was Sunday had nothing to do with the cotton not being shipped, that no such reason was ever suggested, and that the court was asked to excuse a person for the non-performance of his duty for a reason that had never presented itself to the person himself, that appellant had been in the habit of shipping cotton on that day, and at that very time the boats that he shipped by were due here Saturday or Sunday. So they were at that very time under contract to do what it was unlawful for them to do. According to appellant's theory, if the Choteau and Helena had arrived here all that season on Sunday they need never have shipped a bale of cotton, and not been answerable to the shippers because they were under contract to ship by the Choteau and Helena, and not been answerable to the boats for not complying with their contract because they reached Greenville on Sunday. But it was not unlawful for them to ship cotton on Sunday. Section 2949, Code 1880.

The business of keeping a wharf is as much included in the exception as the business of keeping a railroad depot, for without wharfingers the steamboat business could be no more carried on than the railroad business without depots.

2. The legal principles which govern the case are few and simple the difficulty, if any there be, laying in the application of them to the facts. Appellant was a wharfinger, a bailee for hire, a bailment locatio operis faciendi. His duty was to take reasonable care of the property committed to his care while in his custody, and to use reasonable diligence in the shipment of it, and if he correctly discharges these duties then the loss of the cotton is damnum absque injuria. We will consider the liability of appellant for the neglect of this two-fold duty separately. Did he exercise reasonable care in the preservation of the cotton of appellees? If not, was it through the lack of such reasonable care that the cotton was burned? The lack of reasonable care and the loss being occasioned thereby must concur...