MARum
Cd.
t1.
ST.
LOUIS,I.
M.&
S.
RY. CO.
INS.
Co. v; ST. LoUIS, I. M. '&
eo.
(Circuit Court,
E.n..d;rkan8a8.
Fellruaryl0,1890.)
L
IxslmA!t<1E,,-SUBROGATION--PARTIEB.
Mansf. Pig. Ark. § 49S4"provlqing that, "where the assignment of a thing in aO' ttpn 18 not authorized by statute, the assignor must be a party, as plaintiff or defendant,'" has no application to an action by an insurance company which has paid against thewrong.doeroooasioning the loss,as it,does not sue as assignee, by right of subrogation, and theinsured need not be joined. ,' Under,Mansf. Dig. Ark. § 41)88; providing that "ever.y actiol1 must be prosecuted in tbe name of the real party in interest," an insurance compauy which has paid the insured the full value of hiS goods destroyed may maintain an actIon in its own name against the wrong-doer 'causing the loss. '
B.
SAME.
8. ,}Iu:iUOIP.u.COllPORATIONBo'-LEABE 011 STREETS. attempted; lease by a city council of a portion of, a street for a private use Is void, tliough owing to its decliVity, and its termination upon a river, It was seldom used, '6X<leptby footmen. 4. OP COMllUSTmLE MATERIAL IN STREET. TheapcUI;nulation of a large number. of bales of cotton on a public street, near the Dusineils center of the city, in such a manner as to obstruct the street, though a passage was left for footmen, by whom it was almost' solely used, and to endanger a cpnfiagration by its being fired by passing engines ,and smokers, is a nuisance. ' II. SAME-LIARILITY OF RAILROAD COMPANY. A railroad company, contracting to remove cotton received by a 'compressing company,from its warehouse where it was to its compressing mill, is liable' for damages occasioued by a nuisance resulting'from the accumulation of the cotton iu a public street owing to its failure to remove the same, especially when it had beEluaccustomed to take up the warehouse receipts of that company, and i8sue, bills of lading for the cotton covered thereby, reserving the right to have it com-' pressed, as in the former case it would assist in the creation or continuanoo of the, nuisance, al).4 in the latter would, as a common carrier, permit the accumulation of dangerous material, which it was bound to transport promptly. ' 6. SAlIIB-CON'rRmUTORY NEGLIG:£NCE. Where a railroad company, contracting with a compreeeing company to remove cotton reC1'lived ,by the latter from its warehouse to its comp«lssing mill, has failed to remove the same promptly, and permitted its accumulation in such a manner as to create a nuisance likel:r. toocoasion its loss by fire, persons delivering cotton at the w-arehouse are not gUilty of contributory negligence; aod, ,if they were, it would be the railrOad company's duty to avert the consequence of such negligence. '1. SAME-DuTY OF CARRIER TO CARRY PROMPTLY. A railroadcolllpany, receiving and issuing bills of lading fol' goods, cannot. excuse delay in transportation; occasioning such accumulation of danlferous materials as creates a nuisance, on the ground of an unexpected press of buslDesB. 8. iNSURANCE-FoREIGN COlllPANIEs-RIGHT TO DO BUSINESS. Where the contract of insurance is made and the policies issued in another state" · it cannot be objected that the company has not complied with the laws relating to :foreign insurance companies doing business within the state where suit is bl'ought. 9. SAlliE. , The acts of Arkausas relating to insurance forming a di8tinct title, Bot of April 25, 1873, providing that no foreign insurauce company shall do business in the state without filing with the auditor a stipulation that service may be' made on the auditor or an agent is not repealed by Acts Ark. 1887, p. 234, requiring foreign corporations to file with the secretary of state a certificate designating an agent upon whom service maybe made. .
At Law. Aetion for da.mages. , This suit was brought to recover the value of oertain cotton deStroyed by fire in the oity of Little Rock on the 14th day of November, 1887. The plaintiff, InsQrance Company, a. corporation created ,by the
644
J'EDERAL REPORTER, vol. 41.
laWB of Great Britain, brought the Buit against the defendant, the St. Louis, Iron Mountain & Railway Company, a corporation created by the laws of this state, and alleged that prioI'" to the 20th day of September, +887, the UniQn 09lPpreSs Company was engaged in compressing cotton bales for transportationj that its compress was located in Argenta, immediately opposite Little Rock, on the north side of the Arkansas riverj that the defendant was a common carrier, owning and operating a railw!ty that formed a. connection between certain sheds of the'colapress company, Bituated! at the intersection of Main and Water BtreetB, in Little Rock, and its compress, in Argentaj that prior to that time the defendant had agreed with the compress company that it would cotton in bales that might be received at said sheds in Little Rock, across the river, to the compress, for compression; that, for the purpose of realizing and increasing the oompensation thus agreed upon, the 4efen.da,nts made said sbe4s a receiving Iltation for all <;'otton, in common or uncompressed bales, that might be delivered' there, giving bills of lading for all cotton deposited there, upon application of consignors, to any' point in the United States or' Europe, to which it might be COllsignedjreserving in the bills of lading the right to have the cotton compressed; that while this contract was in force R. E. Douglas & Co. and the Howell Cotton Company placed certain bales of cotton in said sheds, for future compression and shipment, and took out policies of insurance agaInst loss, or damage by fire, on, the same from the plaintiff; that the defendant did not remove the cotton that was received at the sheds from titne to time, but suffered it to accumUlate until the sheds became full, aud the cotton ",as piled outside, clear across Main street, leaving only a narrow passage-way fOf, foot$611, with bales of cotton on either side, thus creating a public nuisance in the street; that defendant neglected and refused to remove the cottonthus accumulated until the 14th day of w4en the pilejo£ ;Qotton in the street caught fire, from accident 01' otherwise,and extended thehce to the sheds, which were burned, together with the ip.sured cotton above named j that the insurance covered the full value of the cotton, which had been paid by the plaintiff to the insured. , The defendant demurred to the complaint because the insured, Douglas & Co., and the Howell Cotton Company, were not made parties. U. M. G. B. Rose, E. W. Kimball, and Sanders Watkiw. for · pla.intiff. . . John M. Moore and Dodge & Johnson, for defendant. CAr.:owELL,: J. "(after stating the fdcts as above.) Qur statute requires that "every action must be prosecuted in the name of the real party in interest;" Mansf. Dig. § 4933. It .also provides that, "where the a&8ignment of a thing iIi action is not authorized by stat\.lte, the assignor must be a party, as plaintiff or defendant." 'Section 4934. The latter section has no application to the present case. The complaint does not allege any assignment. The right of the insurance company that has paid a 108s1o recover oithe wrong,doer,after payment of the loss, does not de-: pend,:uppn oontract, agreement, stipulation, or privity. Sheld. Subr. §1;'
MARINE INl!l. CO. ". ST. LOUIS, L :Y. &: 8. BY.
co.
MS
The right of subrogation is sometimes spoken of as an "equitable assignment," but that is only a cOllvenient figure of speech. From the time of the insurance the insurer has a pecuniary interest in the thing insured, and he becomes entitled to a legal 'remedy whenever he suffers a loss by reason of that interest, and it appears that the loss has been occasioned by the wrongful act of another. Of course, he has no right of action until he has paid the loss to the insured, because until that time .he has suffered no damage. In Deshler v. Dodge, 16 How. 622, the plaintiff brought replev.in for bills that had been assigned to him, and it was held that he was not suing in the character of assignee. So it has been held that, when a note is made payable to bearer, a transferee thereof does not hold by and that an executor holding under a will of his testator does not hold as assignee. BU8hnell v. Kennedy, 9 Wall. 387, and cases cited. In lrumrance Co. v. Insurance Co., 129 U. S. 462, 9 Sup. Ct. Rep. 469, the court say: "From the very nature of the contract of insurance, as a contract of indemnity, the insurer, upon paying to the assured the amount of a loss, total or partial, of the goods insured, becomes, without any formal assignment, or any express stipulation to that effect in the policy, subrogated in a corresponding amount to the assured's rights of action against the carrier, or other person responsible for the loss. and in a court of admiralty may assert in his own name that right of the shipper." In respect of parties plaintiff, the first section of our Civil Code above cited renders our practice similar to· that prevailing in the admiralty courts. It has been held under its provisions that the holder of a promissory note payable to order might sue on it without joining the payee, though the latter had never indorsed it. Heartman v. Franks, 36 Ark. 504. And it is held that, under the reformed codes of procedure, the action of the insurance company, in cases of this sort, may be brought in the name of the insurer. Sheld. Subr. § 230; Swarthout v. Railway Co., 49 Wis. 625,6 N. W.Rep. 314; Insurance Co. v. Railway Co., 73 N. Y. 405. Where the value of the property destroyed exceeds the insurance money paid, then the suit must be brought in the name ofthe insured,(Insurance Co. v. Railroad Co., 3 Dill. 1;) though doubtless, un;' der our system of practice, the insurer might be joined where the joinder would not oust the jurisdiction of the court, (GrandaU v. Transport<ttion Co., 16 Fed. Rep. 75.) But, as it is alleged in the complaint in this cause that the plaintiff has paid the insured the full value of .the property destroyed, it is plain that the latter have no interest in the present controversy, and hence that they are not necessary parties. That the plaintiff is suing in its own right, and not as assignee of the insured, although its title may be in some sense derivative through them, is a proposition that is made equally obvious by the decision in Railroad Co. v. Dow, 120 U. S. 287,7 Sup. Ct. Rep. 482. In that case Dow and others, acting as trustees under a mortgage, had expended money in taking up a prior mortgage, given to secure a debt bearing the conventional rate of interest of 10 per cent. per annum, the legal rate being 6 per cent. per annum. The trustees brought suit, claiming that. they
616
T'lCDERAL REt>ORl1'ER, vol.
41.
were'entitled to enforce the prior mortgage, that, the sllbelN>1'the mortgagee, they should be 'allowed 'interest on the debt se:. curen'by tlie mortgage'ai the cortventional rate; but the court refuseato entertain thistie-w, and, held that after payment the trustees could claim no m.6re tban 6 per centum per annum. The court said: "The right of subrogation: is not f0U11ded on contract. It is a creature of equity, is enf<iroed solely for tht1pn:rpost' of accomplishing the en8sofsubstantial justiM,:;and is independent· of any relations between the parties." . And in Johnson v. Barrett, 117, 'Ind. 551, 19 N. E. Rep. 199, the 'contt say: "SnbroglltI6n is the substitution of another person in creditor, so thaHheperson substituted willsucceed to all the rights of the creditor, having reference to the debt dUe him. It is indepelldent of any merely contractual relations between the parties to be affected by it, and is broad enough to include every instance in which one party is required to pay a .debt for which another is primarily answerable." The demurre;r was overruled. The defendant then filed an answer,admitting the contract between it and the Union Compress Company; but it denied that it had made the cotton in Little Ro<;:ka receiving station for the shipment of cotton; asserfedthat the cotton in the sheds was solely in the possession and under the control of the compress company; denied that it ever induced shippers to deliver cotton at the sheds, or that it ever permitted cotton unre.asonablyto accumulatE! at that place; denied that it had participated in the creation of a public nuisance inthp, street; denied all carelessness; and asserted that the insured were stockholders and officers of the compress company, and that by storing the cotton in the sheds they had contributed to the loss thereof. The defendant pleaded further that the plaintiff was a foreign corporation, doing business in the state of ArkansM; and that at the time of the issue of the policies it had never complied with the requirements of a statute of that state mentioned in the opinion of the court. . The cause was tried before ajury, when the following facts appeared in evidence: The cotton sheds' referred to were located on the corner of Main and Water streets,in Little Rock two streets that cross each other . at right angles; the latter street running parallel with the Arkansas river, which wasnElar by. At that point Main fltreetapproaches the river by a steep descent, and is therefore rarely used, except by footmen, by whom it was much used, mainly in going across Water'street to a clubhouse built near the river, and for the purpose Of the river on several skiff ferries that landed at the foot of Main street. On Water street the defendant operated its railroad, which had a switch made for the purpose of recei'ving cotton from platform built in front of the cotton sheds bythacompresscompany.· By the terms of the agreement between the compress company imd·thedefendant, made early in September, 1887 ji the 'defelldarit was to take cotton in CO'lllmOn bales delivered at the sheds f;c)'Argenta 'for compression, for the price of two dollars a cari and, as common oarriers preferred to have the cotton compressed for
MARINE I1\S. 00. V.ST. LOUIS, I. M.&: B. BY.
64T
the convenience of transportation, it was agreed that the compress pany should load the cotton on cars to be provided by the defendant in Little Rock, whence it was to be carried to the compre!ls in Argenta, and there compressed by.it, and reloaded on cars for further shipment to any point to which it might be consigned; the compress company insuring the cotton from loss by fire while it might be lying at the sheds, and subsequently, until reloaded on the cars after compression, for the benefit of the defendant, all for the price of 13 cents for each hundred pounds of cotton. The Memphis & Little Rock Railroad Oompany also had a. like arrangement with the compress company, but it had no access to the sheds in Little Rock, and could only get the cotton to be shipped by,its line by a side track running by the compress building, in Argenta. The oustom of doing this business was of some years' standing, and had its origin in a like agreement between the Little Rock Oil & Compress Oompany and· the defendant. The Union Compress Company was organized in June, 1887, and succeeded to the property and business of the former company; and at the beginning of the cotton season of that year it renewed and continued the agreement that previously had been acted upon. The customary manner of doing the business was as follows: . Any shipper in Little Rock, having cotton to ship to any point in the United States or Europe, would take it to the cotton-sheds, and thereupon the compress company would give him a receipt for the same, in the form of a printed warehouse receipt. This the shipper would take to the office of the defendant, or to that of the Memphis & Little Rock Railroad Company,which would take up the receipt, and would give to him a. bill of lading for the transportation of the cotton to its final destination in Europe or America, reserving in the bill of lading the right to compress the cotton so received. Upon this the railway company' notified the shipment to the compress company, which at once insured the cotton for the benefit of the railway company, as above stated. It appeared that very large quantities of cotton were thus received by the compress company during the three months immediately preceding the fire. The evidence showed that the defendants had not furnished cars·to remove the cotton thus deposited; that the place where it was.deposited was near the business center of the city; that the compress company exercised control over its sheds and Krounds in Little Rock;; but that at the compress in Argenta there was a shipping clerk, whose' salary was paid by the compress company and the defendant jointly. ' At the time of the fire the cotton had accumulated at the sheds until there were from 3,600 to 4,000 bales at that place. The sheds had been filled to overflowing, until a lower story on Water street, not intended for the storage of cotton, had been filled"after which cotton was placed outside, on the platform utilized in loading it on cars, and then it had been piled across Main street, which was shown to be a public street, leaving only a narrow way for footmen to pass, as above stated. At the timeofthe fire there:were thus deposited 1,463 bales of cotton for which bills of lad· ing had been given by the defendant, and 1,211 bales for which the Memphis'& Little Rock Railroad Company had given bills of lading.
648
FEDERAL REPORTER,
vol. 41
The rest of the cotton, including that to which this suit directly relates, wasunbilled.There was evidehce to show that it was the custom of shippers to deposit cotton of It grade required until the proper number of bales oithat grade could be. gathered together, when it would be shipped under one bill of lading. Further, that the cotton of Douglas & Co. and the Howell Cotton Oompany was thus deposited waiting an opportunity to make corresponding additions preparatory to shipment. It also appeared that, owing to the block of cotton at the sheds in October and November, the conipress companyhnd objected to the depositmg of cotton at the sheds,· unless for the purpose of immediate shipment; but that it had never actually refused to receive any cotton brought.to its- sheds, and that defendant had continued to give bills of lading for all.cotton which was offered ·for shipment, down to and including the day of the fire. It also appeared that Douglas & Co. and the· Howell Cotton Company were fuUyaware of all the facts above stated at the time the insurance was taken, and one or more members of each firm owned stock in the compress company; and that the cotton insured by them would have been included in bills of lading within a day or two, if the fire had not occurred. Of all the cotton shipped from Little Rock during the cotton season of 1887, being about 35,000 bales previous to the fire, only about 50· bales, as it appeared, had been shipped from aoy other point save the cotton sheds of the compress company, and some 500 to 1,000 bales that had been hauled to the depot of the Memphis & Little Rock Railroad Oompany in Little Rock, on aC.:Jount of the block. of cotton at the sheds at the foot ·of Main' street. At the time of the fire the accumulation of cotton at the sheds had been going on for five or six weeks, and Bome of the cotton that was burned had been entered on bills of lading as much as five weeks before the fire. It was shown that'at that time the weather was unusually dry; that, while other persons having cotton near the railway sprinkled it after the passage of each train, nothing was done to protect the cotton in and near the sheds at the foot of Main street, except that a watchman was kept to look after it. Persons smoking pipes, cigars, and cigarettes passed at will along thepnssage on Main street, between the cotton bales, and the cotton had been previously fired .more than once by accident, and the fire had been put out. It was shown that the officers of the compress coD;lpany, during the time that the cotton was there accumulating, made repE:'.ated demands on the defendant for cars to remove the cotton, but that none were furnished. , The defendant introduced testimony to prove that the autumn of 1887 there was a large and unexpected increase of freight for its road, growing out of an unexpected increase in the manufacture of lumber and the early maturing of the cotton crop, so that it was impossible to procure cars to meet the demand thus made; but the caNervi:Je agent ofthe defendant, being one of its witnesses, testified that in 1887 there were plenty of .oarS.' at LittleRock to have removed the cotton, and that he did not know why it was not removed. The defendant offered to prove that the city council of Little Rock had leased the ground in Main street.
MARINE INS. CO. tl. ST. LOUIS, I. M. it S. RY.OO.
649
at the foot thereof, to the Little Rock Oil & Compress Company for the storage of cotton, and that it had succeeded to its rights. This was objectedto, because the council had no right to lease a public street for private uses, and because the lease provided that it should not be aesigned without the council's consent, which was not shown. The plaintiff read an ordinance of the city forbidding, under a penalty, the storage of goods or commodities on the streets, and a proclamation of the mayor of the city, issued in September of 1887, calling attention to the illegality and danger of storing cotton in the streets. The evidence also showed that the bales of cotton in the street had been, for the most part, if not all, cut open for the purpose of sampling them, and that holes were thus left in the bales where the cotton was exposed; also that the baling covering the bales was made ofcloth of a very inflammable character. The fire originated in or near the narrow passage between the bales on Main street, and was. kindled by a match in the hands of a hoy, who was passing, and who was smoking a cigarette. The fire destroyed all the property above mentioned, and much other valuable property, real and personal. As the questions involved in this case have been extensively discussed., and the case itself presents some novel features, I think it proper. to state my conclusions of law upon the evidence .adduced. As to the more material questions of fact, there is hardly a conflict in the tesu· mony. I have had no difficulty in excluding the lease from the city council.' To say nothing about the clause against assignment of the lease, it was plainly ultra vires, and void. The streets of the city do not belong to the council, but to the public,-and by that I mean the public at large, and not merely the inhabitants of the city,-and to their use they are forever dedicated. The city charter makes it the duty of the city council to keep them open and free from nuisance. It provides that "the city council shall have the care, supervision, and conttol of all the public highways, bridges, streets, alleys, public squares, and commons within the city; and shall cause the same to be kept open and in and free from nuisance." See Mansf. Dig. 737. The only legal effect of the lease, it would seem, is to render the city liable for the danlages resulting from such a licensed nuisance. Cleveland v. King, 132 U. S. 295, 10 Sup. Ct. Rep. 90. It makes no difference that, owing to the declivity at the foot of Main street, the street at that point was not commonly frequented by vehicles. The requirements of the public as to property set aside for its perpetual use was not a matter to be passed on by the council, and it is plain that, by the establishment of a ferry or the building of a bridge at that point, it might at any time become one of the most frequented of all the thoroughfares of the city, the expansion and ameliOration ofwhich cannot be 'hindered by leases of the streets by the city council.. The law is well settled,as it ought to be, that allsu<lh, len.ses are void. 2 Dill. MUll. Corp. § 660; McDonaldv. MayfJ1', (N. J.) '1 AU. Rep.. 855; Harriabwrg'8 Appeal, (Pa.) 10 AU. Rep. 787; Gaa 20 Ind. 13J. . .
'650
FEDERAJ,,' REPORTER,
vol. 41.
to use, Main street that others had'; no greater, and no less. Cotton or cOmmodities of any kind maybedawfully placed inthe street for immediate! transp0rtation,but noi one can have the right :to :appropriate any part lof!s,lstreet to a private use. i ,The city ordinance that was read only give8'emphasisto what was the law; before it was passed"and what would remain the law if it were repealed.· The storage of gooda ,or impediments oelany! kind on thestreet:ior' an unreasonable time ia an:act that constitutesianuisance. PatteT80nv. [email protected] 00.,56 Mich. 172, 22 N. W. 'Rep; 260;: Henry v. Dennis,93lind,'452, 47 Amer;Rep.378; Maddox v. Cu1mingham,68 Ga.431; Tu'm{!/l'v. Holtzman, 54 Mi.l.148; Wendell v. .Mayor, 39 Barb. 336; Oallanan v.Gilman, 107 N. Y. 36.0,'14 N. E. Rep. ··'And dne who thus a street for an unreasonable length .ofUnl8'is guilty of creating and maintaining a nllisancejwhethertheen'e1l0aonment materially interferesiwith the use of the street or 'not. "The riglJtrtOpassand repass upon highway is not restricted to any the public are entitled not only to a free passage along the highway, but to a free passage along any portion of it not in the actual use of someJothertraveler.' 1 Hawkd? O. c.-32, § 11." State v. Berdetta, 73 Ind. ·185,38 Rep. :117,andndte. In this case there was not only an ob'struotionof the street, but ,the obstructio,n was caused by many thousands 'otbaleS'ofcotton, a veryicombBstible'material, contiguous to the business center of the city. It was created and continued for several weeks .through I!o' verrJ dry seasoll; when'tille cotton was in danger of being fired by the sparks' of passing }Ooomotives,' by. persons smoking in the street, and by other means. CoIisidering· the fact that it would be next to impossible to extinguish a fireioriginating in this accumulation of combustible material until the whole oiit should be oonsumed, and that the fire thus kindled would, probably be communicated indefinitely to buildings and property tht'oughoutthe city, involving not only great pecuniary lOss, btitprobably loss of life'as well, it is impol:lsible to say that this of cotton thus,plaeed.\y8s not a nuisance of a very alarming nature.' WhatClidhappen....;.the::burning of the cotton, with muc;:h valuable 'adjacent, property-was jusf.what might have been reasonably apprehended,and what it seems was apprehended by: the officers of the compreBS company. , It .is Jilot:neeessary to say' that the defendant was .the Bole party in fault in' the mattet'; for whoever aids or assists in'creating, maintaining, or a nuisance is responsible for any 1088 or damage that may be caused thereby. What was:called the "cotton shed" oUhe compress 'company(Rt'the foot of Main s1lreet",was simply; a large "coveredwith'&' gravel roof, two'stories in height" .tpeupper story being intended 'fol1 ' ,thestorageof cotton, having aninclfue, by which· baltlsof cotton were,rolled down to the IQwkstory for oompression bythemachinery whiCh had been formerly operated in the: lower story, but which had been, ren1ovedsome mouths' before the opening of the cotton season of 18S:Y.' 'ThisJ lower story, n:otintended for the storage of cotton,was covered in front with iron, with several doors opening on the platform
:The Union Compress Company and the defendant had the sathe right
MA.RlNE INS. CO. V.ST. LOUIS,
r.
11. " It. RY.
6.51
which formed a connection with the cars of the defendant em its sid,e track, whenever they were placed there for the purpose of receiving it. As the cotton was not removed by the defendant as iteame in, the upper story became filled, and new accessions of bales were placed in the lower story, until that was filled; whereupon cotton newly arrived was placed along the platform outside, and on the street, until it covered the entire street for a considerable distance, except the narrow passage-way for pedestrillns. Witnesses testify that, if the cotton had been removed as it came in, the compress company would have had room for the convenient storage of all cotton that was left there temporarily for the making up of lots for shipment. That the defendant is responsible for the state of things that resulted in the fire, causing the loss for which the plaintiff sues, I have no doubt. If it had removed the cotton as it was received, the ooUonin the sheds would have been reasonablysafe,-as safe asootton deposited in other sheds in the city. This is not a suit upon the contract between the compress company and the defendant, but the action is based on the assumption that the defendant contributed to the creation and continuance of the nuisance. If A. should make a contract with H., by which the latter should contract to deliver to him in front of his premises in the street a certain quantity of gunpowder, that he would renlove it to a place of security, or to a place less dangerous, and he should not remove it after delivery, but should suffer it to remain in the street until it exploded, to the injury of a third person, he could hardly be heard to say that the nuisance was created by B.,and not by himself. One may become responsible for aiding in the creation of a nuisance either by action, or by neglecting to act. It is not necessary to weigh the comparative responsibility of the defendant and the compress company; TheIatter might have broken off its contract with: the defendant, and have refused to. receive cotton after the breach of the contract became apparent; but I do not think that it lies in the mouth of the defendant to say that it ought to have done so; and, it seems to inethat the prime fault was in the defendant in not removing the cotton as it had agreed to do, and prom ptly, as the exigency of the case demllooed. At any rate, by its participation in the illegal acts complained of, it became liable for any loss that might occur, without. regard to any question .of liability on the part of the compress company. Where the negligence of two or more persons contributf'S to occasion It. loss to a third person, they are both liable for the damage sustained. Slater v. MersefM'U, 64 N. Y. 138. So where a landlord has a sidewalk that is out of repnir, and he leases it, with a ('Olwenant on the part of the tenant to keep in repair,and after that one is injured b)' reason of the defect in the sidewalk, the landlord and the tenant are both liable . for the injnry. Davenport v. Ruclr:man, 37 N. Y. 568. Where an injury is the result of two concurring causes, the party responsible for one 01 these causes mnot exempt frOlD liability, because the person who isresponsible for the other cause may be equally culpable. Lake v. Milliken, 62 Me. 240; '.sarrett v. Railway Co., 45 N. Y. 628; Pretty v. Bickmore, 6 Monk,.Eng"lk 182. If we, ,might say that the· nuisance was created
652
by the compress company, it would nevertheless be true that the defend. ant would liable for the loss arising from the conflagration, since it is true that anyone that continues a nuisance is as guilty as he that creates it. Wasmer v.. Rail-road Co., 80 N. Y. 212; BrcYUY/l. v. Railroad Co., 12 N. Y. 487 · Those who create or continue a nuisance ina street are bound, at their peril, to keep the street as safe as if the nuisance was not there. Irvin v. Wood, 4 Rob. (N. Y.) 142; Wendell v. Mnyor, 39 Barb. 336; Anderson v. Dickie, 26 How. Pro 117; Congreve v. Morgan, 18 N. Y. 84; BizzeU v. Booker, 16 Ark. 308; Bonnell V. Smith, 53 Iowa, 282, 5 N. W. Rep. 128. . One who creates a nuisance, or who continues it, is liable for any damage caused ,thereby, though the immediate cause may have been the negligence of another person. Myers v. Malcolm, 6 Hill, 292; Wood, Nuis. § 142; MCAndrews V. Collerd, 42 N. J. Law, 189. The.Iiability of the defendant may, however, be placed on a distinct gI:ound equally secure. The denial in the answer that the defendant did.not make ,the cotton s;heds one of its receiving stations is overturnpd by all theevidenoe in the case. Practically all the cotton that was shipped from Little Rock in the autumn of 1887,prior to the fire, was shipped there. It will not a\"ai1 the defendant to say that the cotton at the sheds was in the exclusi ve control of the compress company. As for the'1,463 bales for which it had issued its bills of lading, they are ,by law-conolusively presumed.to have been in its possession, (Acts Ark. 1887, p. 84;;},ltno, as to the 1,211 bales for which bills of lading had been issued by the Memphis & Little Rock Railroad Company, they were held by the <:ompress company subject to its orders, and as its agent. Without these the remaining cotton, embracing that for the value of\vhidh this suit is brought, could not have been destroyed in the way in which it was destroyed. Now, a railroad company which allows explosive. or combustible materials to accumulateiat a station until they become a nuisance must necessarily become liable for any injury sustainedby reason thereof. Railroad Co. v. Conway, 8 Colo. 1, 5 Pac. Rep. 142; Scott v. Hunter, 46 Pa. St. 192; Wood, Nuis. § 142; Lake v. Milliken, 62 Me. 240; Bradley V · .People, 56 Barb. 72. The plea ofcontributofy negligence is not sustained. The delivery of the cotton at the sheds by the insured was in no sense a proximate cause of the loss, and no act of negligence on the part cyf the plaintiff that is nota proximate <:ause ofthe injury, complained of can be considered in the of cqntributory negligence; Buch as will. bar aright of action. Beach, Contt'ib. Neg. § 10. Moreover, the defendant gave bills of lad. ing for all cotton that was offered to' it for shipment, 'down to the very dayoi the fire; and it cannot'tlOw be heard to say that it was the fault ofany one, to trust it to perform its duty because it had shown itself to be untrustworthy in the past. Immunity from liability is not to be secUred 'by a tminoi misconduct,however long continued. ,. A. few cases illustrative of this principle may be mentioned. A tenant rented certain lands for 1877 ,knowing that a railroad company main. tai.ned a nuisance thereon in the shape of a pond of water! ,which affectedthe health of his family. With this knowledge, he rented the 'place
MARINE INS. CO.". ST. LOUIS,
Y. &'It BY.
for the year 1878, when it became more sickly, '80 much so that he was unable to gather his crops; and he brought an action against the railroad company; and it was held that the tenant could presume that the latter would abate the nuisance; that the law did not require him to remove, but did require the company to abate the nuisance. Railroad 00. v. English, 73 Ga. 366. The law will not hold it imprudent in a person to act upon the presumption that another will actin accordance with the rights and duties of both, even though he may have formerly, conducted himself in a contrary manner. Ne:wBOn v. Railroad 00., 29 N. Y. 383. The subject is discussed in KeUogg v. Railroad Co., 26 Wis. 223; Fraler v. Water Co., 12 Cal. 555; BowaB v.Pow-Line, 2 Sawy. 27. See, ,also, Beach. Oontrib. Neg. §§ 10. 13, 18, 23; Damour v. Lyons Oity, 44 Iowa, 276. Moreover, if it were held to be negligence on the part of the insured and others to deposit their cotton in' the sheds, knowing that the defendant had faUeci to remove other cotton promptly, as its duty required, still if the defendant, its officers and agents, knew, of the negligence of the persons thus depositing their cotton, as the evidence shows that they did: it was their duty to avert the consequence oftheil'negligent acts, and the defendant could not evade responsibility for 'a fuilure to do so. Railroad;Oo. v. Freeman, 36 Ark. 46. The claim that the defendant is to be excused because, owing to an unexpected press of business, it had not cars sufficient to remove the ae-cumulating cotton, is not' good in law. nor is it sustnined by the evidence. A railway company may rightfully decline to receive freight offered when it has not necessary rolling stock and equipments to carry it without delay, but if it receives goods for transportation it is held to a compliance with its contract to transport them without unreasonable delay. Bus8&y v; Railroad Co., 13 Fed. Rep. 330. 'But while the evidence tends to show a lack orears belonging to the defendant, or under its control, for moving the freight on its lines in this state generally, the evidence of the principal witness for the defendant on this point, Mr. Hequemberg, is that only 15 or 20 cars were needed for transferring the cotton across the river,and that there were plenty of cars at Little Rock, in 1887, to have removed every bale of it. Another defense relied on is that tho plaintiff iaB foreign corporation that had not complied with the laws of this state at the time of the issue .of its policies. This defense is based on the act approved Apri14, 1887, (Acts Ark. 1887, p.. 234,) which provides "that,· before any foreign -corporation shall carryon any business in this state," it shall file a certificate in the office of the secretary of state, designating an agent,' a citizen of this state, upon whom service of process maybe made,and that in default thereof the contracts of such foreigncorpbrations with oitizens .of this state shall be void. There is no force, however, in this defense, the evidence shows that the contracts of insuranee were made in tho state of New York, and that the policies were issued in that state; As was said by GRESHAM, J., in Lamb v. Bow861', 7 Biss. 315"itilll hardly competent for the legislature of this state "to declare tha'tthecit. izens ofthis' state spall not be allowed to make such contnets'<as.:they
;,
bf. the state, foJ" the their PJ'Qperty, whether it \Ie within:PMdthout the state." i Certainly it was not the intention of the ]egisllltu;l1Edpgo ,so far; 'and the., Qourt1So held in ,that case, where the, statute ,was the .same, in,s'\ilbstnncflJ!ail,OUr own., Certainly the issuing of a polioyin;New York, on J>11Operty bere, cannot be considered as the carrying On otbusiness in this state, within the intent &pd meaning of the stlitute inquElstion., is.a.tleast doubtflllw.betherthe defendant if the iSf:luing of the policies was within. tlilepu1'view' of the ,statute. In the case ,of The Biss, th.e. court said : ,"If the'Owneroftbe cargo 'had not taken a policy from the agent of this oompaiiy,bllthad shipped' witbbut(insAirance, he WOIl'ld, be entitled to recover of tliecarrier. (or the 10s9,.the :vul.lepfth,e cat"go. In my Qpinion, the ci\rrier not be permitted to. defense. The, shipper mIght hllve a libel for the use ,of tbecQmpany, and.· if the use were not expressed Inthe record. company. even after a decree in favor of ,. : ' " . . , , " .' ;__ I 1
.'There isallother upon: which; this defen!lemust t'Etil. The legisilltllreof this,state4 in reference to iUS\lrance, hasalwaystormed a distinct title by itsp-lf, and. haa not :beeninany way blended with enactmentsreferring to geneffllly. It may be ISllidtQform something like II code, wbicb ha:s been added to from time to time, 'required. By·an,act approved April 25, 1873, it was prQV:ided., in effect. thllotnoforeigninsl,l'rance compPon-y .should,dobusi:qessiu this state without first: filing witbthe auditor'a stipulation agreeing that any proce$sservedon the ,auditor, Of an .agent to be designated by, the com.pa,ny. ahould have the i'same eflectas if served on the comPIlnYi andthat;Jf aay 8\lchcompany'should cease to an ageut \n this '2tate,Sl,:lch processlUigM thereafter be served on the auditor. 'Mansf.Pig. § 3834. This statute; accomplishes for;foreign inllurance tbe :Sllme resultstrbat sought to be obtained 'as. to other (QfeignnCOrpoJ1l.tions .by. the later "ct.· It bas been in force for I;l. Kood maA)' year!3,.IlnQ: lhll$ beenfound"satililflloctory. The act of 1887 contains no repealing clause, and as these two statutes are not inconsistent, and iropliedrepellola Are not favol1ed. r ,think: that they are both in force, and ihat,thl:lstatute:.ofl887 has nO application to insuran.ce companies· . '; Etltert$inh1g.these viewsupoJl the questions of law that have been discuased,' I. shall the jury. as follows: The CPlUplalnt cha:rgl;}j!3that the defendantand the UnionOompress Company, byiaJil l;I.greemel.,t,between tbeUlMlves and by a general course of business, mAde tbtj<lottpn,.sh/:lds of compallyat ;!tQefoot of Main rnceiviug,-smtian for CQttonto be sentfrom<tbis city by any pompresl'l cofsaidUpion.',Co.ljJl;prelJs Company in Argenta,for pl'ElSl'liQn" andtbat defendant $ho,uld trnnsport all cotton thus received, failed to .transport the. cottonthllsreceived p'1'Qi$lptlV;; to' :at said cotton sheds, and in So public. highway ;0{ the, city, .Until it became a public nuiWl),8 set, (>D fire 'iu, and that by reason of said fire
MARINE' INs.oo.li:s'!'. LOUis, t.M.:
&l- S.
:655
the cotton insured by it, mentioned in the complaint, was destroyed. The agreement" mentioned in the complaint, betweeIl·the Union Compress Company and the defendant, is admitted in the answer; and it is also admittE!d,that the cotton'didaccum'ulate' insllid'cotton sheds, and at the foot of Main street, and that it was fired in stre(lt. But, tIle it isnotr,esponsible for the loss.of 'the cotton men.tiontrlin the C<'lmplaint, because, owing to an unexpected demand on it ,for cars ;of freight in the, lu()nths of September, October, and November, 1887, it could not furnish the means of·t1'ans'portation o!(\hecotton received at said cotton sheds promptly, aCGordingto The court now instructs' you that by said agreeit was the -duty of said, defendant to transpqrt the cotton thus re"ceived 'at said cottOil sheds for shipment promptfy to Argenta; and·,that ifdefendantfailed todoso,and'byreason of the- continued reception Of : giving "of bills 'Qf lading ,as often,asd,emandedby shipper!!, down toth,e day of the fire,ootton ..:OO,accumUlate sheds, and, on Main street,tintil it ':endangered .the -property ,of;.others in. the,,immediate' vicinity, and .that mentioned in the complaint, then said defehdant was guilty of aiding in the creation and maintenance of a public nuisance, and is liabl:e,(Qr the its defeWie"th;at" -!Vas, hlnd:ered loss mentioned in the from transportir,gsaid'cotton of an unexpected-pressure of IS not sustained by the eVIdence. The defendant has furtl;1er, that it is nqt f9r the injury cause, beMuse Dotlglas'& Co. and the H6well Cot'ton' Company by their;own negligence contributed to said loss of said .cotton; but the court instructs you that there is no evidence to slistain the jury find that thedeferidant -Was 'guilty of aiding in (lreating; maihtaining, or tlontinuing said nuisance' as af&esaid',itrid ,that the oottontnentioned iriSll.id complaint was destroyed by 'reason thereof,an<i ,the jury find that at the timeofitsloss it was insured against the, plaintiffs, and the plaintiffs halte since that time' and 'before the bringing of this suit paid the amount'of stiid 10s8 to the: in'surer, that' being the flill: value of the cotton, the jury will' find for the 'plaintift',and will assess their damages at thesuD1sthus paid by them, with intereat'at:the rate of6 per cent. per annuIn.'froin the date of said 'payment until the present time. The deferidarit.has pleaded that the policies ofinsuranee mentioned'in the complaint were vOid, because the 'plaintiffs had ,not complied with the laws ofthis"stilte. Up'ontlie evidence this defense. is not, sustained; and on that issue the jury will. 'find for the plaintiff;" ' , " ., ' ". 'J;; , ..I - i ,
;J
'i
I.J " ','J
, ;':" ;'!i.
JY'"
'(C",I, :'11:·;:.1
J'EDEDAL REPORTED,
vol. 41. C.
JACKSON
CHICAGO,
S. F. &
Ry.
CO.
, (Oircuit OO'W't, W. D. Missouri, W. D. March 8, 1890.) 1. EHI1Q-El'{T DOH,uN-DAHAGE TO A,1lJOINING PROPERTY-DrVEJ\SION 011 BUSINRSS.
9.
The owner 01 land on' a street over which a railroad has been built, with the consent Qf.the municipallt;v, capnot recover from the railroa.d company for loss of travel to another street on account of the of tra.de occasioped by tbe presence of the'railroad, since sueh'dlunage 'is not peculiar to himself. '
BAHE.....G:aADING BTUIIlT.
a. , .
R4ILROAD CO¥p.&NIES--DBAINAGIIl.,.,.qrrr
Rev. St,Mo. 1879, § 810, whioh proVides that. railroa.d CQmpanies, any railroad in any county: of the state; shall construot and maintain suitable ditches to'carry oft water Whose 110w has be.n obstructed by the construotion of their railroads, does not apply .to railroads' constructed along a cit;v street, and a ,ailroad company construotin/f a dito.h in sueh litre.et, without mUnIcipal permtllsibn. is !lable to tlle o.wnera Ilf propert7 for damage to the renta!valUo thereof caused . suoh ditob. by ' , 'i
J. L.
At .Law.
Gardiner Lathrup and
Farri8ltQd Ba71 &: Harfliuton , for plaintiff.
"'.
,
for defendant.
PHILIPS, J .rrhis is an action for dELmages arising from the construe.tion of a railroad .along a stree.tin front of plaintiff's store-room in the ,town ofCamden, Ray county, Mo. Camden is a municipal corporation, under the General $tatutes. The defendant is a railroad corpoorganized under the laws·of t11e state of Illinois. Camden is a small town of a few hundred with one principal busipess street, known as "Front Street,"runningthrough the town east anqwest, about 60 feet in width. Plaintiff's business house fronts on this street, with a street running nol'tb and south on the east side of the store-room. On the west side of tilis store-room is a warehouse or storage-room, used .by ,plaiJltiff. in connection with his mercantile business, the entrance to whjch is from said Front street. The Missouri river runs in front of JhisJ()wp,. ,with said Front street, with no other street be;tween it Front street. Between the river and said street is ()f the. Wabash RaHtoad Qompany, the depot of which is some the east of plainti·ff's property. The material allegations of the petition are that, prior to the acts complained of, the said Front street was dedicated and used as a public highway; that in the year 1887 "the defendant, without authority of law and in violation of the rights of the plaintiff, wrongfully constructed its railroad track on said main street in front of the lot and buildings aforesaid, dug ditches to a great depth and width, erected high embankments, and changed greatly the grade of said street, whereby said street, with its crossings, is and was so obstructed that it cannot be
