
    The Baltimore & Ohio Railroad Co. v. Armstrong, Lee & Co.
    
      Railroads — Special contracts not per se void, when> — Agreement to convey shipment beyond Hood danger — Pleading — Contract, tort or conversion.
    
    A special contract between a common carrier and a shipper, made in view of an unusual flood, for the immediate and necessary removal of perishable goods beyond the reach of the flood, is not per se void unless its terms are unjust, unreasonable or discriminatory in their nature or in their operation.
    (No. 15865
    Decided February 11, 1919.)
    Error to the Court of Appeals of Muskingum county.
    On the 23d day of August, 1913, Armstrong, Lee & Company filed their petition in the court of common pleas of Muskingum county, averring that they delivered to The Baltimore & Ohio Railroad Company at their grain elevator, at Zanesville, Ohio, two thousand one hundred and sixty-eight and one-third bushels of wheat, in two cars, with the agreement and understanding that the railroad company was “to safely and immediately transport and deliver same over its railroad to high ground out of reach of water,” and averring that “the said defendant then and there received same and agreed to safely transport and deliver same to plaintiff on' and at high ground out of reach of water for said hire; that said defendant at the time of receipt and agreement • aforesaid, knew the contents of said car and that same was in danger of inundation at point where shipment was made.”
    
      The petition further averred that “said defendant did not safely or immediately transport said wheat to said high ground, as it agreed to do, but on the contrary, said defendant, after receiving said shipment and removing same from the custody and control of plaintiff, wrongfully, recklessly and negligently delayed the forwarding of same to said high ground, and wrongfully, recklessly and negligently permitted said car to become so situated,” in the flooded districts of Zanesville,that said wheat became and was of “no value and wholly worthless.” Damages were asked in the amount of $2201.44.
    Defendant answered by a first defense constituting a general denial with many admitted facts; a second defense averring in substance that said wheat was caught in an unusual flood of water and was so badly damaged as to render it worthless by said unusual flood, and not- by any default, negligence or misconduct on the part of the defendant; and a third defense in substance that “under the laws of Ohio regulating intra-state commerce, the defendant is prohibited from making or entering into any contract for the shipment of freight not provided for or authorized by its published tariffs; * * * that the contract or agreement alleged in each of the causes of action in the petition herein was not authorized or provided for by defendant’s said tariffs or schedules, and that said alleged contracts or agreements were illegal, null and void and in violation of Sections 505, 506, 508, 510, 513 and 564 and 567 of the General Code of Ohio.”
    
      Upon trial to a jury in the court of common pleas a verdict was rendered' against the railroad company for the full amount, and judgment entered on the verdict.
    Error was prosecuted to the court of appeals, which affirmed the judgment of the court of common pleas.
    Error is now prosecuted here for the reversal of the judgment of the court of appeals.
    
      Messrs. Frasier & Frasier, for plaintiff in error.
    
      Mr. C. T. Marshall, for defendant in error.
   Wanamaker, J.

Plaintiff below claims that the action is one for wrongful conversion of wheat,' and that such a case is not only pleaded but abundantly proven under the evidence.

The Constitution of Ohio, in its Bill of Rights, Section 16, says:

“All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law,” etc.

The record overwhelmingly discloses, and it is admitted in the pleadings, that these two carloads of wheat were lost, at least in value, while in the custody of the railroad company and while on its tracks ,* that prior thereto it had removed the wheat from the siding at the milling company’s elevator to another point on the railroad company’s line. The question of negligence on the part of the railroad company was submitted to the jury, under proper instructions of the court, and if the petition stated a cause of action the verdict of the jury was abundantly warranted.

Did the petition state a cause of action?

The petition does aver that “plaintiff delivered to the defendant on board cars” the wheat in question, and that while the same remained in the possession of the railroad company it was made wholly worthless and of no value whatsoever, and that this was by reason of the negligence of the railroad company in respect to handling said cars. The language of the pleading, and the evidence as well, indicate that a contract was made between the railroad company and the milling company touching the handling of said cars and their removal to a place of safety.

Now, it is well settled law, that is elementary, that though one have a contract, if there has been negligence in the performance of that contract, he may sue in tort, or for conversion, and claim his damages upon proper proof. And that was done in this case.

The code of Ohio was clearly intended to abolish common-law distinctions and technicalities as to the manner of stating the various causes of action in tort or contract, and otherwise. The cause was designated as a civil action, and the pleader had a good petition when he put in it:

1. A statement of facts constituting the cause of action, in ordinary and concise language.

2. A demand for the relief to which the plaintiff claims to be entitled.

Hence, in such cases as the one at bar at least, it becomes unimportant to undertake to classify the action as one strictly in contract or strictly in tort.

The evidence clearly supports, the claim that the railroad company came into possession of these cars at two or three o’clock in the afternoon, when they were still in good merchantable condition; that they were removed by the railroad company to some other point, not entirely clear by the record, but in the flood district; and the jury below, and the courts below, found that the above was negligence on the part of the railroad company.

As to the third defense, that the agreement pleaded was in violation of certain sections of the General Code of Ohio, we have already declared the elementary law as to pleading upon contracts, that the party may sue in tort for negligence of the other party in failing to observe due care with reference to his bailment. But even if the party in his petition had declared upon special contract, we see nothing in this contract in violation of these sections. These sections' relate to the duties of a common carrier, and their purpose is to prevent discrimination between different members of the public as to charges for services as a common carrier. The service in this case was not as a common carrier, but as an uncommon carrier, in an uncommon situation, an emergency under uncommon circumstances, for which the milling company was liable for a reasonable and just charge.

.But even as to a special contract between the carrier and the shipper, such special contract is not per se void, unless it exhibits an unjust and unreasonable charge discriminatory in its nature. No claim of this character is made in this case.

It is likewise unimportant in this case to determine whether the railroad company acted as a common carrier or otherwise. The facts pleaded and proven abundantly justify the recovery.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson and Donahue, JJ., concur.

Robinson, J., not participating.  