St. Louis Railway Company v. Commercial Union Insurance Company

This was an action at law, brought September 21, 1889, against a railroad corporation of Arkansas, by three insurance companies, corporations of other states or of England, to recover the sum of $17,000, which the plaintiffs had insured on 340 bales of cotton to Samuel O. Smith & Co., the owners thereof, and had paid to them upon a loss of the cotton by fire, in consequence (as the complaint alleged) of the defendant's negligence. A plea of nonjoinder of Samuel O. Smith & Co. was filed and overruled, and the defendant answered to the merits. The evidence introduced by the plaintiffs at the trial tended to prove the following facts: Before September 20, 1887, the defendant (whose railway extended from Little Rock in Arkansas, across the Arkansas river, to Argenta and beyond) had made an oral contract with the Union Compress Company (which was engaged in compressing bales of cotton for transportation) to receive all cotton in bales that might be brought by its owners to the sheds of the compress company at the foot of Main street, in Little Rock, and to transport it over its railway across the Arkansas river, to the compress of that company in Argenta, a distance of a mile and a half, for two dollars a car-load. Immediately in front of the sheds was a platform along the railway track, and habitually used by the compress company for the purpose of loading cotton on the cars. While the contract was in force, 340 bales of uncompressed cotton were placed by Samuel O. Smith & Co. at the sheds, and in the care and custody of the compress company, which gave them a receipt stating that the cotton was 'received by the Union Compress Company for compression; storage after ten days will be charged; not responsible for any loss by fire;' and afterwards, by reason of an accumulation of cotton in the sheds, owing to the neglect of the defendant railway company, though often requested by the compress company, to furnish transportation according to the contract between them, the compress company piled and kept these bales and much more other cotton in the street adjoining. The defendant railway company, as a matter of convenience to all parties, and at the request of owners of cotton, often gave them in exchange for the receipts of the compress company, and before the cotton was put on the cars by the latter, through bills of lading to its ulimate destination after being compressed; and, after so issuing such bills of lading, gave written notice to the compress company, stating the fact of their issue, and directing the compress company to ship the cotton on the railway by a certain route and to a certain address; and the compress company, on receiving such notice, insured the cotton in behalf of the railway company, and put the cotton on the cars, compressing it at Argenta for the convenience of further transportation. The railway company gave such bills of lading for most of the other cotton; but it gave no bill of lading for the 340 bales in question; and, unless through its dealings with the compress company as aforesaid, it in fact exercised no custody or control of the sheds and the street, or of any of the cotton, before it was put on the cars by the compress company. The plaintiffs, on October 17 and 19 and November 11, 1887, by their agents at Little Rock, without having complied with the provisions of the statute of Arkansas of April 4, 1887, c. 135, entitled 'An act to prescribe the conditions upon which foreign corporations may do business in this state,' severally issued policies of insurance to Smith & Co., amounting in all to $17,000, on the 340 bales of cotton, describing it as in the sheds, on the platform, and in the street. The value of these bales was $18,179. On ove mber 14, 1887, the cotton piled in the street, including, the 340 bales, was wholly destroyed by fire from an unknown cause, and the plaintiffs afterwards paid Smith & Co. the sums insured.

The defendant requested the court to give, among others, the following instructions to the jury: '(5) If at the time said cotton was burned, on November 14, 1887, at the foot of Main street, it was in the custody, possession, and control of the Union Compress Company, and upon premises over which the defendant railways company had no control, and if it owed no duty as a common carrier in relation to said cotton, and if, while in such custody and control, the cotton was set on fire by the act of some unknown person, with whom the defendant had no connection, and of whom it had no knowledge, then the defendant railroad company cannot be held liable in this action.' '(11) If the jury find from the evidence that there was no contract or arrangement between the railway company and the compress company which contemplated the depositing of cotton in and upon Main street, but that the placing of cotton there, and the permitting of it to be placed there, was the sole act of the compress company, and the owners of the cotton, and that the railway company had no control over the premises where the cotton was stored, then the defendant is not liable in this suit, even though the depositing of cotton in and upon Main street constituted a public nuisance. (12) In order to make the defendant liable for the placing of cotton in and upon Main street, the jury must find from the evidence that the defendant was a party to the arrangement or agreement by which the cotton was deposited in and upon said street; and the mere fact that an arrangement existed by which the defendant issued bills of lading for cotton deposited in the compress warehouses, and had agreed to handle the same from said warehouses to Argenta, this fact of itself will not make the defendant liable for an injury which would not have happened except for the placing of cotton on the street itself.' '(14) If the jury find that the plaintiffs, at the time of the issue of the policies of insurance introduced in evidence in this cause, had not and have never up to this date filed in the office of the secretary of state certificates designating an agent upon whom service of summons and other process may be made, or certificates stating the principal place of business of each plaintiff in this state, as required by the statute of the state, it cannot maintain this action.' The court refused to give each of these instructions; and instructed the jury that, by the agreement between the defendant and the compress company, the defendant made the cotton sheds of that company a receiving station for cotton to be sent by any one from Little Rock to the compress of that company at Argenta, and 'it was the duty of said defendant to transport the cotton, thus received at said cotton sheds for shipment, promptly to Argenta; and that if the defendant failed to do so, and by reason of the continued reception of cotton at said sheds, and the continued giving of bills of lading therefore as often as demanded by shippers thereof, down to the day of the fire, cotton was suffered to accumulate at said sheds and on Main street until it endangered the property of others in the immediate vicinity and that mentioned in the complaint, then the defendant was guilty of aiding in the creation and maintenance of a public nuisance, and is liable for the loss mentioned in the complaint;' and that if the jury found that 'the defendant was guilty of aiding in erecting, maintaining, or continuing said nuisance as aforesaid, and the cotton mentioned in said complaint was destroyed by reason thereof,' and was at the time of the loss insured against fire by the plaintiffs, and the plaintiffs since that time, and before bringing this suit, paid the amount of the loss to the assured, the jury should return a verdict for the plaintiffs for the sums so paid, with interest. The grounds of the rulings ad i nstructions of the circuit court appear in its opinion delivered in a similar action brought against the same railway company by another insurance company, and reported as Marine Ins. Co. v. St. Louis, etc., Ry. Co., 41 Fed. Rep. 643. The defendant duly excepted to the refusal to give each of the instructions requested, and to so much of the instruction given as is above stated; and after verdict and judgment for the plaintiffs, sued out this writ of error.

John F. Dillon, for plaintiff in error.

E. M. Rose, E. W. Kimball, and G. B. Rose, for defendants in error.

[Argument of Counsel from pages 227-231 intentionally omitted]

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.