Alabama & Vicksburg Railway Co. v. Tirelli , 93 Miss. 797 ( 1908 )

Fletcher, J.,

delivered the opinion of the court.

In 1905, the city of Vicksburg was in.the throes of a yellow fever panic, and the city council had by ordinance established a quarantine against all bananas from New Orleans. The ordinance further created a sanitary commission, composed of the-regular sanitary committee of the board, the mayor, and city physician, and this commission was given power to enforce the quarantine regulations of the city. Appellee purchased a car load of bananas in Mobile, against which city no quarantine; had been established, and the fruit reached Vicksburg over the-line of appellant’s railway. Upon the arrival of the bananas at Vicksburg, the railroad company was notified by the chief of police, both verbally and by formal written notice; that the bananas must not be delivered to appellee, and that appellee would not be allowed to unload and distribute the bananas, even if delivery were made. It was shown that the chief of police was acting under specific instructions from the sanitary commission as to this particular shipment. The railway company, under these circumstances, declined to deliver the bananas; and, appellee refusing to direct any other disposition, the car was attempted to be returned to the shipper, who, however, declined to receive same. Ultimately the car was sent to New Orleans, and the fruit was wholly destroyed and lost. Tirelli Eros, brought this suit against the railway company for the value of the bananas, and, the case being submitted to the court upon an agreed statement of facts, recovery was had for the amount sued for. Hence this appeal.

Both sides rely-upon the case of Wilson v. Alabama Great Southern R. Co., 77 Miss. 714, 28 South. 567, 52 L. R. A. 357, 78 Am. St. Rep. 543. In that case the railroad was held liable for damages in forcing a passenger to disembark at the Mississippi state line on account of avoid ordinance of the Mississippi state board of health. In this case no actual force was employed by the Mississippi authorities to- compel obedience to their orders. The ordinance had been adopted, and notice given to the railroad companies; but it does not appear that any -officers were present to enforce the orders. The only compulsion under which the railroad company acted was constructive, and not actual — such compulsion as arose from the mere promulgation of the order. But in the case at bar the chief of police at Vicksburg and his cohorts, backed by the sanction of the city authorities, were there physically and actually present, prepared to enforce obedience to their orders, and the company would have inevitably been brought into collision with them, had it persisted in its purpose to deliver the car. In our opinion, the -case falls precisely within the rule laid down in the Wilson case: “The railroad company must take the risk, as all citizens do, as to the validity of such orders, when it yields to the order alone; and when its defense is, not that it yielded obedience because only of the order, bat because also of vis major — a shotgun quarantine, for example — its defense will be maintained if it shall appear that such vis major, such uncontrollable necessity, was the real cause of its action. It need not go to the extent of actual collision with force marshaled by necessity, but it must show its action was due to such force existing ;and capable of controlling its actions.”

It is no answer to this language to say that no ordinance of the city prohibited the importation of bananas from Mobile. This is true; but the company is not bound to maintain an armed force to resist and overpower the marshaled hosts of the city police, acting under instructions from the executive department of the city government. [We think the judgment .should have been for the appellant.

Reversed and remanded.