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

KNIGHT, J.

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. 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.) With respect to that it may be granted that it is the carrier’s duty, independent of con

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tract, to properly ventilate its cars in order to preserve perishable goods in transit, and that any failure to comply with such duty resulting in loss or injury to the shipper renders the carrier liable for the damage sustained. (10 Cor. Jur. 93.)