St. Louis, I. M. & S. Ry. Co. v. Biggs

• Decision Date: 14 January 1888
• Citation: 6 S.W. 724
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> BIGGS.
• Court: Arkansas Supreme Court

6 S.W. 724

ST. LOUIS, I. M. & S. RY. CO.

v. BIGGS.

Supreme Court of Arkansas.

January 14, 1888.

Appeal from circuit court, Hempstead county; L. A. BYRNE, Judge.

This is an action brought by Mrs. Biggs against the St. Louis, Iron Mountain & Southern Railway Company for negligently killing and wounding several head of live-stock. Part of said stock plaintiff held by virtue of a lease. Mansf. Dig. Ark. § 5540, provides: "Any person who owns stock as aforesaid, in his own right, or who has a special ownership therein, having any such horses, mules, cattle, or other stock killed or wounded by any railroad trains running in this state, may sue the company running such trains for the damages sustained by such killing or wounding, and recover such damages as the court or jury trying the case may assess." Judgment of $366.25 for plaintiff. Defendant appeals.

Dodge & Johnson, for appellant. Scott & Jones, for appellee.

SMITH, J.

Mrs. Biggs recovered judgment against the railway company for $366.25 for the negligent killing and wounding of several head of live-stock at various times. The errors that are complained of here were a ruling of the court as to the sufficiency of one paragraph of her complaint, and a direction to the jury respecting the measure of damages. The second paragraph reads as follows: "(2) That on, to wit, the said first day of May, 1885, at a place on said road in Miller county, near said mile-post No. 470, defendant, by its agents and employes, carelessly and negligently ran an engine and train of cars over and upon one horse in which plaintiff then and there had a special ownership, derived as follows: Prior to the date of said killing, plaintiff had rented and leased and taken into her possession the said horse from one Mrs. Heath for a valuable consideration, and under a promise and agreement, at the expiration of said rental, to return said horse in a good, sound condition to said Mrs. Heath; and it was during the continuation of said lease, and while in plaintiff's possession, that said horse was killed; and thereby plaintiff became liable to and did pay said Mrs. Heath therefor the sum of $80. Said horse was of the value of $80; and by reason of being run over and upon as aforesaid said horse was killed, to plaintiff's damage in the sum of $80."

To this second paragraph the defendant interposed a demurrer upon the grounds (1) that said count failed to set up facts sufficient to constitute a good cause of action against the defendant; and (2) that there was a defect of parties, in this: that the paragraph disclosed the fact that one Mrs. Heath was the owner of the horse that had been killed, and that she was therefor a necessary party to the action to recover its value.

As horses are not real estate, we must presume the pleader meant to aver that Mrs. Biggs had hired the animal of Mrs. Heath. The point of the demurrer is that the plaintiff had no right, under the statutes of this state, to sue for the value of this animal, so killed, without making the general owner a party to the action, so that all parties in interest might be concluded by the judgment, and the defendant might not be harassed with a second action. The argument is that a demand founded upon a tort is not assignable; and, where the assignment of a thing in action is not authorized by statute, the assignor must be a party, as plaintiff or defendant. Mansf. Dig. § 4934. The answer is that Mrs. Biggs does not sue as assignee, but in her own right. Section 5540 of Mansfield's Digest, which gives the right of action in such cases, distinctly recognizes the right of any person who has a special ownership in the live-stock injured to maintain the action. And this is declaratory of the common law, according to the principles of which the bailee of a chattel, whose term is unexpired, being answerable over to the absolute owner, may sue for its full value, if it is injured or destroyed while in his possession, and if he recover, the action of him who has the reversionary interest is gone. Thus, in Armory v. Delamirie, 1 Strange, 505, 1 Smith, Lead. Cas. (8th Ed.) pt. 1, p. 679, a chimney-sweep's boy who had found a jewel was permitted to recover its full value, notwithstanding it was manifest that the real property was in a third person.

In Heydon's Case, 6 Coke, 69, the rule and the reason for it are thus stated: "He who hath a special property of the goods at a certain time shall have a general action of trespass against him who hath the general property, and upon the evidence damages shall be mitigated; but, clearly, the bailee, or he who hath a special property, shall have a general action of trespass against a stranger, and shall recover all damages, because that he is chargeable over."

In Poole v. Symonds, 1 N. H. 289, it was decided that one who has received goods belonging to another from the sheriff, and has given a receipt, promising to redeliver them when required, may recover full damages in trover for their conversion. And the court said: "In many cases either he who has the actual or he who has the constructive possession may maintain trespass, trover, or replevin; but a judgment in favor of one will be a bar to an action in favor of the other."

In the case of Lyle v. Barker, 5 Bin. 457, it was held that a pawnee of goods could maintain trespass against a stranger who takes them away, and recover the whole value in damages, though they were pledged for less, upon the ground that he is answerable for the excess to the person who has the general property."

In White v. Webb, 15 Conn. 302, the court said: "If the suit is brought by a bailee or special property man against the general owner, then the plaintiff can recover the value of his special property only; but if the suit is against a stranger, then he recovers the value of the property and interest thereon according to the general rule, and holds the balance, beyond his own interest, in trust for the general owner."

In Harker v. Dement, 9 Gill, 7, it was ruled that, "in an action of trespass or trover by a termor against his reversioner, for an unauthorized interruption of his possession during the term, the measure of damages is the actual loss sustained by the lessee. But in such an action against a stranger and wrongdoer, the termor is treated as the absolute owner of the property, and he is entitled to recover its full value. The termor being bound to restore the property to the person from whom he obtained it, or to stand responsible in damages for its full value, has the right to recover its full value from a stranger who has wrongfully deprived him of it."

We shall conclude these citations with an extract from the note to Armory v. Delamirie, in 1 Smith's Lead. Cas. pt. 1, top pp. 701, 702: "It is universally admitted that the special right of property conferred by the delivery of a chattel as a pledge, or its bailment for hire, is sufficient to sustain either trover, (Harker v. Dement, 9 Gill, 7; Ingersoll v. Van Bokkelin, 7 Cow. 680,) or replevin, (Harlan v. Harlan, 15 Pa. St. 507; Bass v. Pierce, 16. Barb. 595.) Thus an auctioneer to whom goods have been sent for sale, (Tyler v. Freeman, 3 Cush. 261,) a common carrier to whom they have been delivered for transportation, or a warehouseman who has received them for safe-keeping, may recover in trover or replevin against any one by whom they are wrongfully taken or converted. White v. Bascom, 28 Vt. 268; Harker v. Dement. And as the rule is the same whether the bailment is naked, or clothed with a consideration, (Little v. Fossett, 34 Me. 545,) a traveler may maintain trover against a steamboat company for a carpet-bag which has been intrusted to his care by a friend, (Moran v. Steam-Packet Co., 35 Me. 55;) the obligation imposed by the trust being sufficient to entitle him to damages against those who interfere with its fulfilment. Nor is the right thus conferred by a special property in chattels personal inconsistent with a co-existing right of action for the same cause in the general owner, (Booth v. Terrell, 16 Ga. 20; Morgan v. Ide, 8 Cush. 420;) both being entitled to sue, although a recovery by either will be a bar to a subsequent action by the other; (Strong v. Adams, 30 Vt. 221; Ely v. Ehle, 3 N. Y. 506; Root v. Chandler, 10 Wend. 110; Spence v. Mitchell, 9 Ala. 744; Hart v. Hyde, 5 Vt. 330; Thorp v. Burling, 11 Johns. 285; Drake v. Redington, 9 N. H. 243; The Farmer v. McCraw, 26 Ala. 189; Downer v. Rowell, 22 Vt. 347; Nichols v. Bastard, 2 Cromp. M. & R....