Ward v. Gulf, M. & N. R. Co.

• Decision Date: 03 August 1938
• Citation: 134 S.W.2d 917,23 Tenn.App. 533
• Parties: WARD v. GULF, M. & N. R. CO. et al.
• Court: Tennessee Court of Appeals

134 S.W.2d 917

23 Tenn.App. 533

WARD v. GULF, M. & N. R. CO. et al.

Court of Appeals of Tennessee, Western Section.

August 3, 1938

Petition for Certiorari Granted by Supreme Court March 4, 1939.

Affirmed by Supreme Court July 1, 1939.

Appeal in Error from Circuit Court, Shelby County; H. W. Laughlin Judge.

Action by John R. Ward against the Gulf, Mobile & Northern Railroad Company and others for breach of contract for interstate transportation of personalty by rail. The action was dismissed as against the Illinois Central Railroad Company and verdict and judgment given for the plaintiff as to the remaining defendants and plaintiff appeals in error.

Judgment affirmed as to the Illinois Central Railroad and as to remaining defendants reversed and remanded.

J. C Rutschman, of Memphis, for plaintiff in error.

Evans Evans & Creson, Canada & Russell, Cooper Turner, Jr., and Emmett W. Braden, all of Memphis, for defendants in error.

ANDERSON Judge.

This was an action at law against three common carriers to recover damages sustained by reason of the alleged breach of a contract for the interstate transportation of personal property by rail. The contract is known as a "Special Baggage Car Contract". The shipment, consisting of show and carnival equipment, originated at Covington, Tennessee, and was destined to Philadelphia, Mississippi, where it arrived after considerable delay and in a damaged condition.

The defendants, among other things, plead specially that the contract under which the property was shipped had a provision placing an agreed valuation thereon and fixing the basis of the carriers' liability in the event of partial loss or damage; and that plaintiff's recovery, if any, should be limited accordingly.

As against this defense, plaintiff contended that there had been a substantial deviation in the mode of transportation agreed upon in the written contract and hence the defendants were to be regarded as having abandoned the contract provision set up in the special plea.

At the close of plaintiff's evidence, the defendants, Gulf, Mobile & Northern Railroad Company and the trustee of the St. Louis-San Francisco Railroad Company, moved that a verdict be directed for plaintiff and his damages assessed at $250, the maximum amount that he could recover under the contract provision plead by the defendants as applied to the undisputed facts. This motion was granted and judgment was entered accordingly.

At the same time, a verdict was directed in favor of defendant, Illinois Central Railroad Company, the initial carrier, and the suit dismissed as to it, presumably on the theory it was not responsible for any deviation or damage. For reasons hereinafter stated, we are not concerned with the result as to that defendant.

The plaintiff brought the case here by an appeal in error.

It is conceded that the sum of $250 fixed in the directed verdict is the amount recoverable if the contract limitation relied on was applicable and controlling. The questions for decision arise on the plaintiff's contention that the provision was abandoned or waived by a substantial deviation in the contract of shipment resulting from the manner in which the transportation was effectuated.

The property, as stated, consisted of show and carnival equipment and was transported from the point of origin on the line of the Illinois Central Railroad Company to destination by way of the Illinois Central to Memphis, Tennessee, St. Louis & San Francisco Railway Company to New Albany, Mississippi, and thence by the Gulf, Mobile & Northern Railroad Company to destination. This was the routing agreed upon.

The original contract was in writing and, as stated, was known as a "Special Baggage Car Contract." Under its terms the carriers agreed to furnish "special baggage car service", consisting of one car to be moved between the point of origin and the point of destination by the route above mentioned. Pursuant to this agreement, the Illinois Central Railroad Company furnished a steel baggage car into which the property was loaded at Covington, Tenn. After being loaded this car was picked up by a passenger train at or about 5 o'clock on Sunday afternoon and transported by that company over its lines to Memphis, Tennessee. The shipment arrived at destination over the Gulf, Mobile & Northern Railroad on the following Wednesday, loaded in two freight cars which, among others, made up a freight train, and in a considerably damaged condition.

Had the journey been uninterrupted and the usual connections made, the shipment would have arrived at destination early in the morning of the day next after it was shipped. The plaintiff had been engaged to open his show on Monday morning following the date of shipment at a county fair to be held at Philadelphia, Mississippi, and at the time the service was contracted for, the defendant, Illinois Central Railroad Company, was advised with respect to this situation, or rather that it was the plaintiff's desire to have the equipment in Philadelphia early on the following morning. In fact, the record discloses that several days before the shipment was made, the plaintiff advised the local agent at Covington of his desire for the service, stating in substance that his show would close in Covington on Saturday night, July 28, and that he desired to have a baggage car at Covington ready for loading after the close of his show on that night. As a result of this conversation, the local agent ordered from the traffic department of the carrier at Memphis a steel baggage car which was sent from Memphis to Covington ready for loading as had been requested. This was the customary procedure where such special service was required.

The acts relied upon by the plaintiff as constituting a deviation from the contract were and are: (1) the transfer of the property from one steel baggage car to two freight cars, and (2) the change in the mode of transportation from passenger service to freight service.

The defendants first contend that, having declared on the contract, the plaintiff could not be heard to say that there had been an abandonment of it or deviation therefrom.

It was averred in the declaration that the defendants had contracted to safely transport the property from Covington, Tennessee, to Philadelphia, Mississippi; that instead, through gross negligence, they had delivered the property in a damaged condition. In response to an order made under Code, section 8767, requiring them to plead their defenses specially, the defendants filed, among others, the special plea above mentioned.

After the replication originally filed to this plea had been stricken on motion of the defendants, and as the trial began, plaintiff's counsel stated to the court that he desired leave to file another replication admitting the execution of the special contract set up in the plea and averring that by their breach of the same the defendants had abandoned the limiting provisions thereof. We do not find the replication in the record but an order was made allowing it and it was treated as having been filed. Its legal sufficiency was not questioned and without objection the case proceeded to trial upon the issue thus made, the court saying, after allowing the replication, "come on with the proof."

Throughout the trial the pleadings were treated as sufficient to make an issue of fact with respect to whether, in handling the shipment, there had been a substantial deviation from the type of service contracted for and, if so, whether the damage was sustained during the course of that conduct. The question of law as to whether, if made, the deviation precluded the defendants from relying upon the provision of the contract set up in the special plea, arose on the motion for a directed verdict. So, notwithstanding irregularities, if any, in the pleadings, the parties tried the case below upon the theory that the determinative issue under the pleadings was whether the shipment had been handled by the carriers in such a manner as to preclude their reliance upon the limiting provision in the contract based on the agreed value of the property; and this being true, we think that it must be so regarded in this court. Compare: Anderson County v. Hays, 99 Tenn. 542, 42 S.W. 266, and Cannon v. Ewin, 18 Tenn.App. 388, 77 S.W.2d 990.

The motion of the connecting carriers conceded that the evidence was sufficient to show that the shipment had been handled in such a manner as to fasten liability upon them. So the only question presented in the trial court and the only question here, is with respect to the amount which the plaintiff was entitled to recover, and this, as above indicated, turns upon the question of law as to whether, under the undisputed evidence, viewed in the light most favorable to the plaintiff, the defendants can successfully invoke the provisions of the contract of carriage containing the agreed values and of the tariff authorizing its issue with respect to the basis upon which the carriers' liability was to be determined in the event of loss or damage.

Upon this question the plaintiff relies upon the common law rule supported by a long line of decisions, that if a carrier commits a breach of the contract of affreightment which goes to the essence of the contract, it is not entitled after such breach to invoke provisions of the contract which are in its favor. And in this connection it is well established that a carrier unjustifiably deviating from the customary route or mode or manner of transportation thereby creates such a breach of the contract. Numerous cases so holding are collected in a note appearing in 35 L.R.A., N.S., 1046, et seq. To these may be added Reynolds v. Adams Express Co., 172 N.C. 487, 90 S.E. 510, Ann.Cas.19...