Swift & Co. v. Memphis Cold Storage Warehouse Co.

• Decision Date: 13 June 1913
• Citation: 158 S.W. 480,128 Tenn. 82
• Parties: SWIFT & CO. v. MEMPHIS COLD STORAGE WAREHOUSE CO.
• Court: Tennessee Supreme Court

158 S.W. 480

128 Tenn. 82

SWIFT & CO. v. MEMPHIS COLD STORAGE WAREHOUSE CO.

Supreme Court of Tennessee.

June 13, 1913

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Action by Swift & Co. against the Memphis Cold Storage Warehouse Company. From a decree for plaintiff, defendant appeals. Reversed and dismissed.

Henry Craft, of Memphis, for appellant.

Marion G. Evans and James H. Malone, both of Memphis, for appellee.

BUCHANAN J.

This was an action for damages for breach of a contract of bailment. The bailment was for hire. Swift & Co. was the bailor; the warehouse company was the bailee. The subject-matter covered by the contract was about 6,000 cases or 2,160,000 eggs.

The complainant was an Illinois corporation; the defendant, a Tennessee corporation. The former was engaged in the business of buying and selling meats, eggs, and other products of similar character; the latter was conducting a cold storage warehouse business in Memphis, Tenn. Such was the business of the respective parties at the time of the bailment and the alleged breach of the contract sued on.

The bill was met by a demurrer raising the question that the chancery court was without jurisdiction because the action was one to recover unliquidated damages for injury to the property of complainants. This demurrer the court overruled to which action of the court defendant excepted, and thereafter answered the bill and made demand for a jury to try the issues joined, whereupon the cause was submitted to a jury under issues stated in the charge of the court. At the close of complainant's evidence in chief, defendant moved the court to dismiss for want of jurisdiction upon the same ground relied on in the demurrer. This motion the court overruled, and defendant excepted, and, thereupon the cause proceeded to verdict, which was in favor of complainant and for the sum of $7,151.18. From the decree based on this verdict, defendant appealed and has assigned many errors, the first of which is in substance that the chancery court was without jurisdiction, and that the chancellor was in error in his rulings to the contrary. The disposition of this assignment of error necessitates a review of Acts 1877, c. 97, now carried as section 6109, Shannon's Code, and our decisions thereon.

In the outset, it may not be amiss to observe that, upon analysis, it is manifest that the act of 1877 extended the jurisdiction of the chancery court to all civil causes of action theretofore triable in the circuit court with three exceptions, and these exceptions were such cases involving unliquidated damages when based on (1) injuries to person; (2) injuries to property; (3) injuries to character.

The words "all civil causes of action" as used in the act have been construed by this court to mean only those civil actions which could have originated in the circuit court; the purpose of the act being to give litigants the option of bringing suits in such cases either in the circuit court or in the chancery court. Simmons v. Leonard, 89 Tenn. 623, 15 S.W. 444.

The jurisdiction conferred by the act was concurrent and not exclusive. The act did no more than open the door of the chancery court to a class of cases against which that door had formerly been closed. The door remained closed to the three classes of cases above noted as exceptions.

Notwithstanding the apparently plain terms of the act, its practical application has provoked much discussion.

Its constitutionality was assailed and sustained in Jackson v. Nimmo, 71 Tenn. (3 Lea) 597. Of it Judge Freeman, in delivering the opinion of the court in that case, said: "The intention of the Legislature is plainly expressed. It is to increase the jurisdiction of the chancery court. That increase is to be effected by giving the chancery court jurisdiction, concurrent with the circuit court, in all causes of action now triable in the circuit court, except injuries to person, property or character, involving unliquidated damages. This statement of what is the intention of the Legislature, taken from the language of the act of itself is so clear and plain that we cannot misunderstand it, and find no need of the application of rules of construction. It cannot be made clearer or plainer than the act has made it."

The case last cited was decided at the December term, 1879. At the preceding September term this court had under consideration the case of Ramsey v. Temple, 71 Tenn. (3 Lea) 252. In that case the bill was filed in the chancery court to recover damages of an attorney for ordering an execution held up, from which action it resulted that complainant lost the amount of the judgment on which execution was issued. The court did not in that case pass upon the validity of the act, but held that it should be strictly construed, and, speaking of the case there in judgment, said:

"The acts complained of are certainly in the nature of torts. 'An injury to property' in its broadest sense would certainly include any tort injuring or destroying a chose in action, or rendering it valueless by defeating or obstructing the plaintiff in its collection. From the very nature of the acts complained of, the damages are unliquidated and unfixed by the contract. They may be greater or less according as the extent of the injury may be shown by the proof; and the character of the question is not changed by the allegation that the injury complained of has resulted in the loss of the entire debt. This allegation does not render the damages in their nature liquidated or certain."

The demurrer to the bill in that case was sustained, and the bill dismissed.

In a later case, Williams v. Burg, 77 Tenn. (9 Lea) 459, where a bill was filed to recover damages for breach of a covenant of warranty in a deed, it was said:

"It is next argued that the demurrer should have been sustained upon the ground that the action sounds in damages, and is not such an action as the chancery court had jurisdiction of, even under our act of 1877. If this were true--which, however, it is not--still the chancery court has jurisdiction of even purely legal demands in attachment cases; the ground of attachment in this case being that the defendant is a nonresident."

So, in that case, the jurisdiction of the chancery court was sustained. Clearly it was not based upon an injury to person, property, or character within the meaning of the act.

Following the case above cited, Hawkins v. Kercheval, 78 Tenn. (10 Lea) 542, was decided. The bill as amended in that case was a proceeding in substance to compel the mayor and police commissioners of a city to reinstate complainant in an office from which he had been suspended by the mayor and never legally removed by the commissioners. It was held that the mandamus sought by the bill was a form of civil action of which, by virtue of the act of 1877, the chancery court acquired concurrent jurisdiction, inasmuch as the action did not involve unliquidated damages for injuries to person, property, or character.

Frazier v. Browning, 79 Tenn. (11 Lea) 254, was an ejectment bill, and it was held by this court that of such a bill the chancery court acquired jurisdiction by virtue of the act of 1877. Clearly such a cause of action did not fall within any exception in the act of 1877.

In a later case, where the bill was based upon alleged negligence of the circuit court clerk in the discharge of his official duty, by which negligence complainant was deprived of the benefit of an execution which had been levied on 230 bushels of wheat, it was held that the case did not present an injury to property within the meaning of the act of 1877, and the concurrent jurisdiction of the chancery court under that act was sustained. Glenn v. Moore, 79 Tenn. (11 Lea) 256.

In another case, where the suit was based upon the failure of a county surveyor to properly survey a tract of land, by which failure complainants sustained a loss, it was held that the cause of action was not based on injury done to person or property within the meaning of the statute, as in the case of a trespass to the one or the other, but, on the contrary, that the case was based on a loss accruing by reason of an alleged breach of duty which could be measured by the value of the property lost. State v. Keller, 79 Tenn. (11 Lea) 401.

Again, where a principal sued his agent for a sum lost to the principal by the act of the agent in taking an invalid acceptance of a draft, it was said:

"The wrong complained of was not an injury to the person, character, or property of complainants within the meaning of the act of 1877."

The court in the same case passed upon the meaning of the term "unliquidated damages" as used in that act, saying:

"Strictly speaking, 'unliquidated damages' are such damages as have not been ascertained or fixed by contract." Kirkeys & Son v. Crandall, 90 Tenn. 532, 18 S.W. 246.

In Ducktown Sulphur & Iron Co. v. Fain, 109 Tenn. 65, 70 S.W. 813, a corporation which was a defendant in 21 suits at law, brought by sundry persons, each suit arising out of an injury alleged to have been sustained as a result of noxious gasses emitted from roast piles of copper ores, sought by original bill to enjoin the 21 law suits and to have with each of the separate plaintiffs in those suits a separate accounting in the chancery court; but this court held that the act of 1877 did not confer jurisdiction in such a case on the chancery court, and that, upon the contrary, the cause fell within the exceptions in that act.

In another case, where the complainant sought to recover from a national bank the statutory penalty for knowingly collecting usurious interest, this court held that, inasmuch as the cause would have been triable in the circuit court...