Sabarof v. Florida East Coast Railway Co. ( 1927 )

Argued November 16, 1927. This is an appeal, under the Act of April 26, 1917, P.L. 102, by a garnishee from the order of the court below refusing to dissolve a foreign attachment in assumpsit.

After the rule to show cause why the attachment should not be dissolved had been argued, the court below permitted the plaintiff to amend his affidavit of cause of action. The garnishee, relying on the rule of practice established by the Supreme Court, when it had nisi prius jurisdiction (Eldridge v. Robinson, 4 S. R. 548), that supplemental affidavits would not be received, assigns this order of the court below as error. The plaintiff contends that the amended affidavit comes within the modern relaxation of the rule, permitting such amendments as to averments of damage and matters not changing the substance of the action: Mindlin v. Saxony Spinning Company, 261 Pa. 354, 357; Hurt v. Fuller Canneries Company,263 Pa. 238, 241, 242; Pasquinelli v. Southern Macaroni Mfg. Co., 272 Pa. 468, 479. See also, Hallowell v. Tenney Canning Co., 16 Pa. Super. 60; Schueck v. Freeman, 55 Pa. Super. 38,42. We are not required to decide this point, for in our opinion, the affidavits, original and amended, considered together, do not sustain the action as brought.

The action is foreign attachment in assumpsit, not in trespass. Had the plaintiff chosen to rely on the alleged tort involved apart from any contract, he could not have resorted to foreign attachment, (Porter v. Hildebrand, 14 Pa. 129; Boyer v. Bullard, 102 Pa. 555), without complying with the Act of May 15, 1874, P.L. 183, which would have been impossible in this case. Bringing the action in assumpsit, he is confined to a right of action growing out of the contract relied upon, and if that fails, him the attachment must fall.

The plaintiff has brought suit against Florida East Coast Railway Company and Atlantic Coast Line Railroad Company as joint defendants. He alleges a contract with the Florida East Coast Railway Company for the carrying of a car load of potatoes from Hastings, Florida, to Waycross, Georgia, with diversion via Atlantic Coast Line Railroad to Philadelphia; and unreasonable delay in the transportation of the car resulting in deterioration of the potatoes and fall in market price, with consequent injury in market value, for which he seeks to recover. But there is no joint contract of carriage set up in the affidavit. The bill of lading attached to the affidavit was issued by the Florida East Coast Railway Company alone. The relations of the initial carrier and the connecting carrier to the plaintiff were not joint but successive, each being responsible for the transportation on its own line. It is true that by the Carmack-Cummins Amendment to the Transportation Act (February 28, 1920, ch. 91, secs. 436-438, 41 Stat. at L. 494, Comp. Stat. sec. 8604-a. See (including amendments of July 3, 1926, c. 761, 44 Stat. 835, and March 4, 1927, c. 510, sec. 3) U.S. Code, Title 49, chap. I, sec. 20 (11)), responsibility for the transportation of the goods to destination was placed on the initial carrier, and the owner of the goods may sue the initial carrier for the damages resulting from its negligence or that of a connecting carrier, as if the initial carrier had made a through contract: Galveston, H. S.A. Ry. Co. v. Wallace, 223 U.S. 481, 491; or he may bring his action against the succeeding or connecting carrier for the negligence of its own agents: Adams Exp. Co. v. Croninger,226 U.S. 491, 508; Kansas City S.R. Co. v. Carl, 227 U.S. 639; Georgia, F. A. Ry. Co. v. Blish Milling Co., 241 U.S. 190,194, 195; Cleveland, C.C. St. L.R. Co. v. Dettlebach,239 U.S. 588. If the initial carrier is sued and judgment obtained against it, the succeeding or connecting carrier is liable, as a principal, to it for the negligence of its own agents: Atlantic C.L.R. Co. v. Riverside Mills, 219 U.S. 186, 206. The amendment "renders [the initial] carrier liable for loss or damage to the property committed to its care throughout the entire route by which it is billed until delivered to the consignee; but it leaves the relation of all connecting carriers, including the terminal carrier, to the shipper or consignee and to each other, entirely unaffected": Oregon-Washington R. N. Co. v. McGinn, 258 U.S. 409, 415.

In this case the Atlantic Coast Line Railroad was not responsible in any way for the transportation of these potatoes from Hastings to Waycross. It was responsible to the consignee, or the initial carrier, — if the latter had been held liable in damages — for any negligence of its own agents in the transportation over its own line. But the obligation of the carriers was not joint but successive.

We do not mean to hold that two carriers may not be joined in one action of trespass, when their negligence jointly contributed to the injury. But where the cause of action is a contractual one in assumpsit, against two carriers jointly, even though based on a negligent performance of the contract, it cannot be sustained by a contract not joint but several and successive. The verdict recovered in such a suit, in this State, must be against both defendants for the whole amount; not against each for its individual liability. The rule may be different in jurisdictions whose practice, in a suit against two defendants, permits a verdict against each defendant for his individual liability. See Missouri, K. T. Ry. Co. et al. v. Ward, 244 U.S. 383 (affirming 169 S.W. (Tex.) 1035, in connection with San Antonio S. Ry. Co. v. Burd, 246 S.W. (Tex.) 1060.

The Act of June 29, 1923, P.L. 981, known as the Joint Suit Act does not help the plaintiff, for it only applies where "it is pleaded in any suit that two or more defendants are jointlyliable for the cause of action specified"; while here the pleadings — if the affidavits of cause of action may be considered such — assert a liability not joint but several and successive.

The second assignment of error is sustained. The order of the court below discharging the rule to dissolve the attachment is reversed and the rule is reinstated and made absolute.