Jacobs, Malcolm & Burtt v. Northern Pacific Railway Co.

This is an appeal by the defendant Railroad Company from an order denying a motion to dissolve an attachment, issued in an action brought by plaintiff to recover of and from the defendant the sum °of $371.25, as damages, for the breach of a contract,-wherein, it is alleged, defendant agreed to give “standard ventilation” to a„ shipment of 403 sacks of potatoes which were being transported by defendant, as the initial carrier, from Wapato, Washington, to San Francisco.

Defendant is a foreign corporation and the issuance of the writ of attachment was predicated upon an affidavit, filed on behalf of plaintiff, in which it was stated, in substance, that the action was upon contract .against a defendant not residing in the state.

The single question presented by the appeal is whether the action is upon contract or in tort. [1] If it be an action in tort, the remedy of attachment does not lie (Hallidie v. Enginger, 175 Cal. 505 [ 166 Pac. 1 ]; Mudge v. Steinhart, 78 Cal. 34 [ 20 Pac. 147 ]; Code Civ. Proc., sec. 537); and if any doubt arises as to the nature of the action, it should be construed as one in tort. (10 Cor. Jur. 1026.) But if the action be one upon contract, appellant concedes that the motion for the dissolution of attachment was properly denied.

It is the contention of appellant that the respondent’s cause of action is the common one against the carrier to recover damages for injury to goods while in transit, and is therefore founded upon a breach of public duty, which constitutes a tort. (10 Cor. Jur. 107; 4 Cal. Jur. 868; Civ. Code, sec. 2194.) [2] With respect to that it may be granted that it is the carrier’s duty, independent of con

In respondent’s complaint it is alleged that “in consideration of certain reasonable hire and reward to be paid therefor” the defendant “promised and agreed to transport said potatoes under and give them ‘standard ventilation.’ That in and by the terms ‘standard ventilation’ was meant and intended, and was so understood by the parties hereto, that all ventilators on said car should be closed when the outside temperature fell to 32 degrees above zero; that all ventilators should he opened when the outside temperature rose above 32 degrees above zero.”

[3] We are of the opinion that, in the absence of any legal showing to the contrary, the contract pleaded in the complaint imposed upon the carrier a duty or obligation in respect to the goods beyond that which the law itself imposed, and which was of advantage to respondent; that therefore the action must be construed as one upon contract rather than one for the breach of carrier’s public duty. (Hutchinson on Carriers, 3d ed., secs. 1331 and 1328, and cases cited.) If the complaint had alleged merely that the appellant had failed to give the shipment “proper ventilation,” or if there had been any contra showing made by the affidavit or otherwise at the time this motion was presented, to the effect that the obligation of the contract sued upon extended no further than to require the performance of the common public duty, or if a sufficient averment of facts had been presented in that regard, to even raise a doubt upon that question, a different situation would be presented.

[4] Appellant contends, and correctly so, we think, that the question of whether or not the action is founded in tort or upon contract is not to be determined exclusively from the particular language employed in the complaint, if it be made to appear that the nature of the obligation sued upon constitutes a tort. (Hallidie v. Engmger, supra.) But, as before stated, there was nothing whatever before the trial court, and nothing here, by which such fact is

The order appealed from is affirmed.

Tyler, P. J., and St. Sure, J., concurred."