Roth Coal Co. v. Louisville & N. R. Co.

• Citation: 215 S.W. 404,142 Tenn. 52
• Parties: ROTH COAL CO. v. LOUISVILLE & N. R. CO.
• Decision Date: 01 November 1919
• Court: Tennessee Supreme Court

215 S.W. 404

142 Tenn. 52

ROTH COAL CO. v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

November 1, 1919

Error to Circuit Court, Knox County; Von A. Huffaker, Judge.

Suit by the Roth Coal Company against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed, and defendant brings error. Judgment of Court of Civil Appeals affirmed.

McKINNEY J.

This suit was originally instituted by the coal company to recover of the railroad company the value of two cars of coal, which it was alleged the railroad company had unlawfully converted to its own use.

The Roth Coal Company are coal dealers in Knoxville. The coal company purchased said coal at Bernstadt, Ky., where said coal was delivered to the railroad company, in September 1917, to be transported to the coal company at Knoxville Tenn. The railroad company converted said coal at Corbin Ky., which town is in the vicinity of Bernstadt, Ky. This was during the coal strike, and the railroad converted said coal for use in firing its locomotives; confiscation being necessary in order to keep its trains in operation.

It is insisted by the coal company that the proper measure of damages is the market value of the coal at the point of destination, which is Knoxville, while the railroad insists that it is the market value at the place of conversion, which is Corbin, Ky.

Ordinarily the market value at the time and place of conversion is the rule; there is an exception, however, where the property is converted by a common carrier to whom it has been intrusted for transportation, in which case the rule, supported by the great weight of authority, is that the market value at the point of destination, less the cost of transportation governs. Dean v. Vaccaro, 2 Head, 488, 75 Am. Dec. 744; Erie Dispatch v. Johnson & McGuire, 87 Tenn. 490, 11 S.W. 441; Hutchinson on Carriers (3d Ed.) vol. 3, § 1374; Moore on Carriers, 398; Cyc. 2094; Sedgwick on Damages, (9th Ed.) § 844; Farwell v. Price, 30 Mo. 587; Blackmer et al. v. Cleveland C. C. & St. L. R. R. Co., 101 Mo.App. 557, 73 S.W. 913; Spring v. Haskell, 4 Allen (Mass.) 112; Cooper v. Young, 22 Ga. 269, 68 Am. Dec. 502; McGregor & Co. v. Kilgore, 6 Ohio, 358, 27 Am. Dec. 261; Shaw v. S. C. R. Co., 5 Rich. 462 (S. C.) 57 Am. Dec. 768; Rathbone v. Neal, 4 La. Ann. 563, 50 Am. Dec. 579; Wallingford v. Kaiser, 191 N.Y. 392, 84 N.E. 295, 15 L. R. A. (N. S.) 1126, 123 Am. St. Rep. 600; Downing et al. v. Outerbridge, 79 F. 931, 25 C. C. A. 244; McCaull-Dinsmore Co. v. Chicago M. St. P. R. R. Co. (D. C.) 252 F. 664.

We think, therefore, that the Court of Civil Appeals was correct in following the rule just announced.

There was no evidence as to the wholesale market value of the coal in cars on track at Knoxville. It was shown by the evidence that the retail price of coal in Knoxville was from $6 to $6.25 per ton, and that it cost the coal company $1.50 per ton to market said coal after its arrival in Knoxville. The cost of the coal per ton at Bernstadt, Ky., was $2.90 per ton, and the freight on same to Knoxville was 80 cents per ton, making the cost of the coal delivered in Knoxville $3.70 per ton, to which was to be added $1.50 per ton for marketing same, making a total of $5.20 per ton. The court averaged the evidence as to the retail price of coal in Knoxville, and found as a fact that same was $6.12 1/2 per ton, leaving a net profit to the coal company of 92 1/2 cents per ton.

The Court...