US SUPREME COURT DECISIONS

This case involves deciding whether the defendants in error are liable for the damage occasioned to certain property resulting from a fire which occurred on October 28, 1894, in a railroad yard at East St. Louis, Illinois. At the time of the fire, Bosworth was operating the railway as receiver. The decision depends largely, if not entirely, on facts, which are stated at great length by the Court both in the statement of the case and in its opinion. These papers are most carefully prepared. While both deal with facts, those facts are stated with clearness, with fullness, with completeness, and with unusual care. They leave nothing untouched. Without treating them with the same fullness, the reporter feels himself unable to prepare a headnote which could convey an adequate and just account of the opinion and decision of the court. Under these circumstances, he deems it best not to attempt an impossibility, but to respectfully ask the readers of this headnote to regard the opinion of the court in this case as incorporated into it.

This case involves deciding whether the defendants in error are liable for the damage occasioned to certain property resulting from a fire which occurred on October 28, 1894, in a railroad yard at East St. Louis, Illinois.

The Chicago, Peoria & St. Louis Railway Company, at the date of the fire in question, was being operated by a receiver appointed on September 22, 1893, in foreclosure proceedings instituted in the Circuit Court of the United States for the Southern District of Illinois.

On the assumption that the receiver was responsible for the damage occasioned by the fire above referred to, various persons and corporations who had suffered loss filed their interventions, asserting a liability on the part of the receiver for such damage. The interveners were nine in number, and all but chanrobles.com-red

Page 179 U. S. 416

two sought recovery for the loss occasioned by the damage or destruction of barley. The claims other than for barley were asserted by the Chicago, Milwaukee and St. Paul Railway Company and the Carr, Ryder & Engler Company, the former corporation asking to be allowed for the value of its cars, in which were contained the destroyed or damaged barley, while the latter corporation demanded the value of certain doors, sashes, etc., consigned to Birmingham, Alabama. A list of all the interveners is given in the margin. [Footnote 1]

The interventions which related to barley shipments alleged delivery of the cars of barley to an initial carrier, consigned to a named commission merchant in St. Louis, via East St. Louis, the delivery of the barley so shipped to the receiver of the Peoria Company to be "transported to its destination," the carriage by that company as far as East St. Louis, and the damage by fire of the barley in the cars "while the same were still in transit and on the way to destination, and in the possession and under the control" of the receiver of the Peoria Company. In the answers filed by the receiver, there was no denial of the allegations contained in the intervening petitions as to the shipment of the barley in question and the destination thereof. The answers in effect merely averred that, after the receipt of the cars and contents by the receiver, they were delivered by him in the due course of business to the Terminal Railroad Association of St. Louis, and were damaged or destroyed while in the possession of that association and by its negligence.

It was alleged that the delivery to the Terminal Association had been made by virtue of a contract between the receiver and the Terminal Association, of date June 1, which contract was annexed as a part of the answer, and that, by the custom in course of business existing between the receiver and the Terminal Association for four years prior to the deliveries in question, it resulted that the Terminal Association, and not the chanrobles.com-red

Page 179 U. S. 417

receiver was bound for the damage which the fire had brought about. The receiver, moreover, filed a cross-petition praying that the Terminal Association be made a party defendant to the intervention proceedings so that its liability to the interveners might be decreed. Upon this application, the court issued a rule upon the association to show cause why it should not be made a party defendant as prayed. To this action the Terminal Association appeared, solely for the purpose of objecting to the jurisdiction, and moved to discharge the rule for various reasons, all of which addressed themselves to the want of power to compel the appearance of the Terminal Association as a defendant to the interventions. The cross-petition, rule, and the motion just referred to were not thereafter pressed upon the attention of the court, and the Terminal Association never appeared as a party to the intervention proceedings.

When the issues on the interventions were thus made up, the court referred the claims of all the interveners to a master to take testimony and report. Under this reference, the testimony as to all the interventions was taken together. During the course of the taking of the testimony before the master, it having developed that the propinquity of a warehouse filled with hay was the proximate cause of the fire, the interveners added to their petitions the following allegations, as "further, separate, and distinct ground of recovery therein," viz.:

"That upon the arrival of the cars mentioned and described in said petition at said East St. Louis, and while the same were still in the possession of said receiver, said receiver negligently caused and permitted them, together with their contents, to be placed upon certain tracks in close proximity to a large wooden warehouse filled with baled and loose hay, and through which said warehouse locomotive engines were frequently passing and repassing during all hours, night and day; that said wooden warehouse was open at the sides and ends, and had railroad tracks passing through it over which locomotive engines frequently passed, and said hay was generally exposed to fire escaping from said locomotives; that said warehouse and hay were easily ignitible, and on account of the inflammable condition of said hay, the large quantity thereof, and the dimensions of

Page 179 U. S. 418

said wooden warehouse, the same, if set on fire, would burn with great rapidity and produce a great conflagration, all of which the receiver well knew, yet, notwithstanding all this, he negligently and carelessly caused and permitted said cars and their contents to be placed upon said side track, near said warehouse, and to remain thereon for several days, when said hay and warehouse were in some manner set fire to, and the same burned so rapidly, and produced such a large conflagration, that said cars and their contents were damaged and destroyed, as stated in said several petitions, and the petitioners damaged in the manner and to the extent and amount, as therein stated."

Prior to the filing of the amended petitions of the interveners as above stated, the testimony before the master had shown that there was keen competition for the carriage of barley and other commodities from points in Iowa, Wisconsin, and Minnesota between roads entering St. Louis from the west side of the river and those which carried freight from the territory named into St. Louis via bridge or ferry connections from East St. Louis. Indeed, it was shown that in order to get a proportion of the business, the roads on the East St. Louis side of the river were obliged to furnish dealers with facilities equal to those which could be obtained from roads entering St. Louis on the west side. For this purpose, a joint through rate to St. Louis for barley was made, and on the arrival of the barley at East St. Louis, unless the consignees had previously directed to the contrary, instead of being immediately transferred across the Mississippi River for delivery to the consignees in St. Louis, it was held in the cars at East St. Louis to enable the consignees to dispose of the same in carload lots, and when so disposed of, the cars were either delivered in St. Louis or transferred for shipment elsewhere, as might be ordered by the consignees. To such an extent did this custom prevail that it was testified that East St. Louis had become the market place for barley consigned from the territory named to St. Louis.

On the hearing before the master, after the testimony on the subject just stated had been introduced, an offer of proof and stipulation respecting same was made, to which we shall now call attention. In presenting a motion for a continuance of the chanrobles.com-red

Page 179 U. S. 419

hearing, on the ground that he had been unable to procure the attendance of Mr. Teichman and other commission merchants of St. Louis, counsel for the receiver said:

"We expect to prove by these witnesses that the St. Louis Terminal Railroad Association personally solicited this particular barley business, originating on the Chicago, Milwaukee and St. Paul road, on which this controversy is pending; that these solicitations by the Terminal Railroad Association were made to all the barley dealers in St. Louis, to whom the particular consignments of barley are made which are now in litigation; that the Terminal Railroad Association, as an inducement to barley dealers and shippers, agreed to hold the cars on their tracks at East St. Louis free of car service, and offered other facilities in and about their yards at East St. Louis, by which the St. Louis Terminal Railroad Association succeeded in securing the business of all of the shippers; by that term, I mean the consignees and shippers except the business of the John Wall Commission Company, whose business was being handled by the Wiggins Ferry Company, a competing line with the St. Louis Terminal Railroad Association, and that at a later day they also secured the business of this last-named firm. And that the solicitation was made in the interest of the Terminal Railroad Association for the express purpose of having the business sent down the east side of the Mississippi River, so as to give them the benefit of the transfer across the river from East St. Louis to St. Louis in competition with lines west of the Mississippi River."

In the record is next set out the following statements of counsel for the interveners:

"Counsel for interveners: . . . Now, in reference to the testimony of people at St. Louis in respect to the arrangement made by the Terminal Railroad Association by which it would hold these cars of barley and so forth, rather than to postpone this hearing at this time, I will consent that the witnesses, if here, would testify as Mr. Wilson has stated. So I do not think a continuance should be granted on that application. . . ."

"To expedite matters, it is stipulated that the witnesses Otto Teichman, Henry Grieve of the John Wall Commission Company,

Page 179 U. S. 420

L. Leinke, and Charles Orthwein at St. Louis, if present, would testify substantially as has been stated by Mr. Wilson."

Leave having been granted the receiver to answer the amended petitions, he met the new averments respecting the warehouse contained in the amended petitions by denying that while in the possession of the receiver, the latter negligently caused or permitted the property in question to be placed in proximity to the warehouse referred to in the amended petitions, and further averred that, after the delivery of the cars to the Terminal Association, the receiver no longer controlled and directed the placing of the cars in the yards of the Terminal Association. It was also denied that the receiver had any knowledge of the dangerous character of the warehouse.

So also, in the amended answer, doubtless to be able to avail himself of what was deemed to be a defense arising from the testimony as to the custom of detaining shipments of barley, the offer of proof and the stipulation above referred to, the receiver set up a new defense, stated in his answers as follows:

"This receiver, further answering, avers that all of the said intervening petitioners had knowledge, through their consignees, of the condition of affairs that existed in the yards of the said railroad association prior to and at the time said cars and contents were damaged and destroyed."

"This receiver, further answering, avers that the cars and contents mentioned in the said intervening petitions, after being placed, remained in close proximity to said wooden warehouse until the same were damaged and destroyed, with the full knowledge, approval, and consent of the said intervening petitioners, through their agents, their respective consignees, and in fact thus remained for the convenience of said consignees, and at their risk."

In the meanwhile, as by the proof which had been already introduced before the master, it was shown that the relations between the Terminal Association and the receiver at the time of the fire were not controlled by the contract of 1891, which the receiver had annexed to his answer, but were governed by a contract made on August 1, 1892, which had been produced on the hearing before the master, the receiver, in his amended chanrobles.com-red

Page 179 U. S. 421

answer, admitted in effect the error of the averment of his original answer and conceded that the controversy, insofar as controlled by the contract, depended upon the one made in 1892.

After the conclusion of the testimony, the master, in a careful opinion reviewing the law and the facts, reported substantially in favor of the claims of all the interveners. The testimony which had been taken as to all the interventions was embodied in but one report, that upon the intervention of Jacob Rau, and was referred to in the reports filed upon the other claims.

After hearing on exceptions filed by the receiver to the reports of the master, the court overruled the exceptions, affirmed the reports, and decreed the liability of the receiver to the interveners. An appeal was taken to the Circuit Court of Appeals for the Seventh Circuit not only by the receiver, but, by leave of the court, the Chicago, Peoria and St. Louis Railroad Company -- which had become the owners of the Peoria Railway, as assignees of the purchaser at a foreclosure sale -- also perfected an appeal. In the circuit court of appeals, the decrees of the circuit court as to all but one of the interveners were reversed. The appellate court, however, was divided in opinion as to the reasons for its action in the cases which were reversed, such division of opinion being upon the deductions to be drawn from the evidence, one judge concluding that the circuit court erred upon the grounds stated in his opinion, while another member of the court, who concurred in the conclusion that the court below had erred, assigned different reasons. A third member of the court dissented because he thought the court below had deduced proper inferences from the proof in the cause. 87 F. 72. Thereupon a writ of certiorari was granted by this Court. chanrobles.com-red

Page 179 U. S. 422