U.S. Supreme Court Powhatan Stemboat Co. v. Appomatox R. Co., 65 U.S. 24 How. 247 247 (1860)
Powhatan Stemboat Company v. Appomatox Railroad Company
65 U.S. (24 How.) 247
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF VIRGINIA
In the Code of Virginia, chapter 196, are the following sections, viz.:
"SEC. 15. If a free person, on a Sabbath day, be found laboring at any trade or calling, or employ his apprentices, servants, or slaves, in labor or other business, except in household or other work of necessity or charity, he shall forfeit $10 for each offense; every day any servant, apprentice, or slave, is so employed, constituting a distinct offense."
"SEC. 17. No forfeiture shall be incurred under the preceding section for the transportation on Sunday of the mail, or of passengers and their baggage. And the said forfeiture shall not be incurred by any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath and actually refrains from all secular business and labor on that day, provided he does not compel a slave, apprentice, or servant, not of his belief,
to do secular work or business on Sunday and does not, on that day disturb any other person."
The acts prohibited by these sections are no doubt unlawful, but the following case does not fall within their operation.
The Powhatan Steamboat company was the owner of a line of steamers employed in the transportation of goods from Baltimore to Richmond, stopping at City Point to deliver goods, which were to be carried thence to Petersburg by the Appomattox Railroad Company. The steamboat company gave receipts for the goods when shipped, undertaking to deliver them at Petersburg, paying the railroad company a portion of the freight.
Leaving Baltimore on Saturday, one of the steamers arrived at City Point on Sunday morning and delivered the goods intended for Petersburg, which were received and locked up in a warehouse, belonging to the railroad company, to remain until the next day. But in the after part of the day, the warehouse and goods were destroyed by fire. The steamboat company was sued by the shippers and compelled to pay the value of the goods, to recoup which they now sued the railroad company.
The instructions of the court below to the jury were erroneous, viz., that if they found that the goods were delivered on a Sunday under a contract between the parties, express or implied, that they might be received and accepted on that day, and were destroyed by fire on the day on which they were delivered and received, their verdict should be for the defendants.
The steamboat company and railroad company each worked for itself. The railroad company, having received the goods into their warehouse, was bound to keep them in safe custody, as carriers for hire, although it could not transport them to Petersburg until the next day. To take care of them on the Sabbath day was a work of necessity, and therefore not unlawful.
The cause of action in this case is not founded upon any executory promise between the parties touching either the landing and depositing of the goods or the opening or closing of the warehouse, but it is based upon the nonperformance of the duty which arose after those acts had been performed.
If the action was one to recover a compensation for the labor of landing and depositing the goods or to recover damages for refusal to comply with the agreement to open and close the warehouse, the rule of law invoked by the defendants would apply.
The nature of the case and rulings of the court below are fully explained in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
All of the questions presented for decision in this case arise upon the instructions given by the court to the jury, but a brief reference to the pleadings and evidence will be necessary in order that the precise nature of those questions may be clearly and fully understood.
It was an action on the case, and the declaration contained three counts, which are set forth at large in the transcript. Among other things, the plaintiffs alleged in the first count that the defendants were common carriers for hire; that they, the plaintiffs, at the special instance and request of the defendants, on the twenty-sixth day of June, 1853, at City Point, in the State of Virginia, caused certain goods and merchandise to be delivered to the defendants, as such carriers, to be by them transported from the place of delivery to Petersburg in the same state, and that the defendants, in consideration thereof and of certain hire and reward to be paid them therefor, undertook and promised safely and securely to carry and convey the goods and merchandise to the place of destination, and there to deliver the same, and the complaint is that the defendants, not regarding their promise and undertaking in that behalf, so conducted themselves, as such carriers, that the goods and merchandise, through their negligence and carelessness, were wholly lost to the plaintiffs. To the whole declaration the defendants pleaded that they never undertook
and promised as the plaintiffs had thereof alleged against them, and upon that issue the parties went to trial.
From the evidence in the case it substantially appears that the plaintiff was the owner of a weekly line of steamers, employed in the regular and stated transportation of goods and merchandise between the City of Baltimore, in the State of Maryland, and the City of Richmond, in the State of Virginia. Its steamboats, on the trip each way, were accustomed to stop at the intermediate place called City Point, on James River, for the purpose of landing goods to be sent to Petersburg and also for the purpose of receiving other goods arriving from the same place to be transported to either terminus of the steamboat route. Defendant was a railroad company, and was also engaged in the transportation of goods and merchandise over its railroad, extending from City Point to Petersburg in the same state. For many years there had been an arrangement and contract between the parties whereby goods and merchandise destined for transportation to the latter place were to be received by the plaintiff in Baltimore, carried in its steamers to City Point, and there delivered to the defendant, to be by it transported over its railroad to the place of destination. Receipts for the goods were given by the plaintiff in Baltimore, promising to deliver the same to the consignees at Petersburg, where the plaintiff had an agent who collected the entire freight money and paid over one-fourth part of the amount to the defendant. When the steamers arrived at City Point, the goods were landed, and deposited in the warehouse of the defendant, which was situated on the wharf adjacent to the railroad.
According to the regular course of the transportation, one of the steamboats of the plaintiff left Baltimore every Saturday afternoon, arrived at City Point about noon on Sunday, and there such of her cargo as was destined for Petersburg was landed and deposited in the warehouse of the defendant, and the steamer on the same day proceeded on her voyage to the place of her destination. Goods so landed and deposited remained in the warehouse until the following day, because the defendant ran no merchandise train on Sundays. Usually
the warehouse was opened on the occasion, and afterwards closed by the agent of the defendant; but the whole labor of landing and depositing the goods, except the opening and closing of the warehouse, was performed by the plaintiff.
Pursuant to the regular course of the transportation, one of the steamers of the plaintiff arrived at City Point on Sunday, the twenty-sixth day of June, 1853, about noon, with the goods in controversy on board. On the arrival of the steamer at the wharf, the goods, being destined for Petersburg, were landed and deposited in the warehouse, and the evidence shows that the whole labor of landing and depositing them was performed by the plaintiff, except that the agent of the defendant unlocked and opened the warehouse for that purpose and afterwards closed it, as he had been accustomed to do on former occasions. After the goods had been so deposited, the steamer proceeded on her voyage up the river, and on the same day the warehouse and all the goods were destroyed by fire. Suit was brought against these plaintiff by the shipper of the goods, and payment was recovered against it for a sum exceeding twelve thousand dollars, which it had to pay. Evidence was then introduced by the defendant tending to show that the goods were deposited in its warehouse for the convenience and accommodation of the plaintiff, upon the agreement and understanding that the goods should remain there until the following morning, and be at the risk of the plaintiff. Under the instructions of the court, it jury returned its verdict in favor of the defendant, and the plaintiff excepted to the instruction. It is to the concluding portion only of the instruction that the plaintiff now objects, and for that reason the preceding part of it is omitted. Having assumed that state of the case in the introductory part of the instruction -- which the evidence adduced by the plaintiff tended to prove, and which, if found to be true, and the goods had been deposited on an ordinary working day, would have entitled the plaintiff to recover -- the jury was substantially told by the presiding justice, in the concluding portion of the instruction, that notwithstanding the facts so assumed, still if they found from the evidence that the goods were delivered
on a Sunday, under a contract between the parties, express or implied, that they might be received and accepted on that day, and were destroyed by fire on the day on which they were delivered and received, to-wit, on Sunday, the twenty-sixth day of June, 1853, then its verdict should be for the defendant. Had the goods arrived and been deposited in the warehouse on an ordinary working day, the preceding part of the instruction assumed that the evidence in the case would authorize a finding in favor of the plaintiff, and the principal question is whether the rights of the parties were varied by the fact that the goods were landed and deposited on a Sunday. It is insisted by the defendant that it does vary their rights, especially as the goods were destroyed accidentally on the day they were delivered and received. To support that theory, it refers, in the first place, to the sixteenth and seventeenth sections of the Code of Virginia. By the sixteenth section it is provided, among other things, that
"If a free person on a Sabbath day be found laboring at any trade or calling, or employ his apprentices, servants, or slaves, in labor or other business, except in household or other work of necessity or charity, he shall forfeit ten dollars for each offense,"
and by the seventeenth section it is provided that no forfeiture shall be incurred under the preceding section for the transporting on Sunday of the mail, or of passengers and their baggage. Most of the states have laws forbidding any worldly labor or business within their jurisdiction on the Lord's day, commonly called Sunday, except works of necessity or charity. Those laws were borrowed substantially from similar regulations in the parent country, and in some of the states were adopted at a very early period in the history of the colonial governments. Statutes of the description mentioned usually contain an express prohibition against such labor, but we are inclined to adopt the early rule upon the subject that where the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the legislature intended that a penalty should be inflicted for a lawful act. Adopting that rule of construction, it must be assumed that all labor "at any
trade or calling on a Sabbath day, except in household or other work of necessity or charity," is prohibited in the State of Virginia by the sixteenth section of the code already cited. But the defendant does not attempt to maintain that the contract between the plaintiff and the shipper of the goods for the transportation of the same from Baltimore to Petersburg falls within that implied prohibition, or that the voyage of the steamer from Baltimore to Richmond was illegal. As the evidence shows, the steamer left Baltimore on Saturday, the day previous to the fire which consumed the warehouse and the goods, and it is very properly conceded by the defendant that she might lawfully, under the circumstances, proceed on her voyage to her place of destination notwithstanding the fact that, in so doing, she had to sail on "a Sabbath day," and if so it clearly follows that she might stop at any intermediate place on the route. Transportation of the goods, therefore, so far as they were carried in the steamer, was a lawful act, and, in effect, it is conceded to have been so by the defendant. Merchandise trains were not run by the defendant on Sundays, and of course neither the contract of the shipper nor the arrangement between these parties contemplated that the goods would be carried over the railroad on that day. Shippers made their contracts with the plaintiff for the transportation of the goods over the whole route, from the place of departure to the place of destination, wholly irrespective of the circumstances which might afterwards attend the transfer of the goods from the steamer to the defendant, and without any knowledge, so far as appears, whether it would be accomplished on a Sunday, or on an ordinary working day.
When the shipper had delivered the goods to the plaintiff, the contract between him and it was completed, and it is self-evident that it was one to which the Sunday laws of Virginia have no application whatever. All such contracts were made by the plaintiff, but they were made for the separate benefit of the defendant, as well as itself, and the arrangement between these parties had respect to the apportionment of the service to be performed in carrying out the contract made with the shipper, and the division of the freight
money to be received for the entire service. Each party worked for itself, and not for the other, and the compensation for that service was to be derived from the shipper of the goods. Neither party promised to pay the other anything, but each was to receive a proportion of the freight money equal to the proportion of the service the arrangement between the parties required it to perform. Plaintiff made the contract with the shippers in its own name, received the goods at Baltimore, transported them to City Point, and on the arrival of the steamer there, landed the goods and deposited them in the warehouse of the defendant. On the other hand, the defendant furnished the warehouse, opened and closed it on the occasion, took the custody of the goods until the following morning, and then transported them over the railroad to the place of destination and delivered them to the consignees. After the goods were delivered to the consignees, the agent of the plaintiff collected the entire freight money and paid over to the defendant such portion of it as belonged to it under the arrangement. Merchants sending goods knew only the plaintiff in the entire transportation, but, as between these parties, each performed a separate service for himself, and had no other claim for compensation than its proportion of freight money. Had the goods been lost at sea through the negligence of the plaintiff, it is clear that the defendant would not have been answerable either to the shippers or to the plaintiff, because the defendant had no interest in the steamer, and the arrangement between the parties did not contemplate that they should be responsible for her navigation. Shippers, however, had a right to proceed against the plaintiff, although the loss had occurred while the goods were in the custody of the defendant, because their contract with the plaintiff covered the whole route, and as between them and the defendant, the latter was but the agent of the plaintiff. Accordingly, the shippers recovered judgment against the plaintiff, and clearly the defendant is answerable over unless it is shown that the case is one where courts of justice will not interfere to enforce the contract. It is insisted by the plaintiff that the labor of landing and depositing
the goods was a work of necessity within the meaning of the exception contained in the statute, but in the view we have taken of the case it will not be necessary to decide that question at the present time.
Suppose it be admitted that the plaintiff violated the Sunday law in landing the goods and depositing them, and that defendant also violated the same law in opening and closing the warehouse on the occasion, still the admission will not benefit the defendant for the reason that the cause of action in this case is not founded upon any executory promise between the parties, touching either the landing and depositing of the goods or the opening and closing of the warehouse, but it is based upon the nonperformance of the duty which arose after those acts had been performed. If the action was one to recover a compensation for the labor of landing and depositing the goods or to recover damages for a refusal to comply with the agreement to open and close the warehouse, the rule of law invoked by the defendant would apply. Granting, however, for the sake of the argument that those acts of labor fall within the prohibition of the statute, still their performance did not have the effect to transfer the general property in the goods to the defendant nor to release or discharge them from the subsequent obligations which devolved upon them as common carriers for hire. Safe custody is as much the duty of the carrier as due transport and right delivery, and although the defendant was forbidden to transport the goods over the railroad or to deliver the same on "a Sabbath day," yet it might safely and securely keep such as were in its custody, and it was its duty so to do. Irrespective of the Sunday law, the plaintiff could maintain no action against the defendant for the service it had performed in landing and depositing the goods for the best of all reasons -- that in performing it, it had worked for itself, and not for the defendant. Nothing, therefore, can be more certain than the fact that the claim in this case is not founded upon any executory promise necessarily connected with those supposed illegal acts. On the contrary, the real claim is grounded on the obligations which the law imposed
on the defendant safely and securely to keep, convey, and deliver the goods, and upon its subsequent negligence and carelessness whereby the goods were lost. To take care of the goods on "a Sabbath day" and safely and securely keep them after the goods were received was a work of necessity, and therefore was not unlawful even on the theory assumed by the defendant, and the defendant was not expected to convey or deliver the goods until the following day. On the theory assumed, the defendant might have refused to open the warehouse or to allow the goods to be deposited, and if it had done so, no action could have been maintained against it for the refusal. But it elected to do otherwise, and suffered the plaintiff to deposit the goods, and when the warehouse was closed all the supposed illegal acts were fully performed.
Whatever contract or arrangement existed between the parties upon that subject had then been fully executed, and those who had been employed in landing and depositing the goods, as well as the agent of the defendant, who had opened and closed the warehouse, if the acts were illegal, had respectively become liable to the penalty which the law inflicts for such a violation of its mandate. That penalty is a fine of ten dollars, but there is no authority in any court to declare the goods forfeited, nor do we perceive any just ground for holding that the general property in the goods was thereby changed. Unless the goods be considered as forfeited or it be held that the property became vested in the defendant, it is difficult to see any reason why the plaintiff ought not to recover in this suit, even admitting that the acts of landing and depositing the goods and of opening and closing the warehouse were within the prohibition of the statute.
Subsequent custody of the goods was certainly not within that prohibition, and if not, then the law imposed the obligation upon the defendant to keep the goods safely and securely until the following morning, and afterwards to transport them over the railroad to the place of destination and deliver them to the consignees. To assume the contrary would be to admit that a carrier, accepting goods to be transported
on an ordinary working day, may set off the fact that the labor of depositing the goods in his warehouse was performed on "a Sabbath day," against all the subsequent obligations which the law would otherwise impose upon him with respect to the goods. Such a rule of law, if acknowledged by courts of justice and carried into effect, would amount to a forfeiture of the goods so far as the shipper is concerned, as its practical operation would be to allow the carrier, if he saw fit, voluntarily to destroy the goods or to appropriate them to his own use.
Upon a careful examination of the numerous authorities bearing upon the question, the better opinion, we think, is that inasmuch as the subsequent custody of the goods was not unlawful, that the obligations of the defendant, under the circumstances of this case, were not varied by the fact that the goods were deposited in its warehouse by its consent on "a Sabbath day." Great injustice would result from any different rule, and although the precise question has seldom or never been presented for decision, yet we think the analogies of the law fully sustain the rule here laid down. For these reasons, we are of the opinion that the instruction given to the jury was erroneous. The judgment of the circuit court is therefore
Reversed and the cause remanded with directions to issue a new venire.