l. Negligence not the proximate cause of a fire when. The first request of plaintiffs for instructions, which was refused by the court, refers in ambiguous terms J & to the oral contract of the defendant with the Union Compress Company to furnish cars and to haul the same, when loaded with cotton, across the river to the compress in Ar;genta. The reason for this reference is not apparent, unless it be for the purpose of impressing the minds of the jury, if granted, with the belief that the defendant was responsible ■for the losses caused by the fire because it failed to perform its contract with the compress company. If such be its meaning, object or intent, should it have been granted?
The mere failure of the defendant to perform its contract with the compress company was in no wise the juridical •cause of the fire. There was no direct connection between the neglect of the defendant to furnish transportation according to its contract and the fire. The failure to furnish •cars was one of a series of antecedent events without which, •as the result proves, the fire probably would not have happened, for if the cotton had been removed there might have ■been no fire. But it was not the direct and proximate cause, and did not make the defendant responsible for losses caused 'by the fire. St. Louis, etc., R. Co. v. Commercial Ins. Co., 139 U. S., 223.
2. Liability for negligence of an independent contractor. There was no evidence that the defendant was in the actual possession or control of the cotton stored in the warehouse and sheds and on the platforms of the Union Compress Company at the north end of Main street, but the truth is, the compress company had such possession and control. The theory upon which this action was prosecuted, as shown by the complaint and the refused requests of plaintiffs for instructions, was that the defendant is conclusively presumed to have been in possession of the cotton for which it executed bills of lading, and that it had made the place where the cotton was burned a receiving station for its railroad, and the compress company its agent to receive and hold the cotton. Is this theory correct ?
All liability for an injury sustained is based upon the •theory that the party liable has committed a wrong or neglected a duty. Upon this theory a principal is held liable for the acts or negligence of his agent, and the master for those of his servant. Their liability is based upon their fight to direct and control the actions of the agent 6r servant in the scope of his employment. As an incident to this right, the duty rests upon them to so direct and control such acts of the agent or servant that no injury may be done to third persons. For the damages occasioned by a failure to discharge this duty they are liable.
The relation between parties in which responsibility attaches to one for the acts or negligence of the other must be that of principal and agent or master and servant, in which the one is subject to the control of the other. When a party “ using due care in the selection of the person, enters into a contract with a person exercising an independent employment, by virtue of which the latter undertakes to accomplish a given result, being at liberty to select and employ his own means and methods, and the principal retains no right or power to control or direct the manner in which the work shall be done,” no relation of principal and agent or master and servant arises; and the former incurs no liability for the negligence of the latter, his agent or servants, in the performance of the contract. In such a case the latter only represents the will of his employer as to the result of his-work, and as to such means and methods is not a servant, but a master, and for negligence therein is alone amenable. Mechem on Agency, sec. 747, and cases cited.
But this rule of immunity from liability is not without its-qualifications. If the thing to be done is in itself unlawful, a nuisance per se, or probably cannot be done without necessarily doing damage, the person causing it to be done by another is as much liable for injuries suffered by third persons from the act done as he would be had he done the act. in person. But if the converse be true, that is, the act is in itself lawful, is not a nuisance per se, and can probably be done without necessarily causing damage and is not a duty imposed by law on the employer, and the injury results from the negligence of the contractor or his servants in the performance of the service undertaken, the contractor is alone liable. Railway v. Yonley, 53 Ark., 503; Ellis v. Sheffield Gas Consumers Co., 2 E. & B., 767 ; Peachey v. Rowland, 13 C. B., 182; Hole v. S. & S. Railway Co., 6 H. & N., 488; Steel v. S. E. Railway Co., 16 C. B., 550; Rapson v. Cubitt, 9 M. & W., 710 ; Reedie v. London, etc., R. Co., 4 Exch., 244; Knight v. Fox, 5 Exch., 721; Milligan v. Wedge, 12 A. & E.,. 737 ; Overton v. Freeman, 11 C. B., 867 ; Pickard v. Smith, 10 C. B. (N. S.), 470; Chicago City v. Robbins, 2 Black, 418 ;. Storrs v. City of Utica, 17 N. Y., 104; Scammon v. City of Chicago, 25 Ill., 424; McGuire v. Grant, 1 Dutcher, 356 ; Hilliard v. Richardson, 3 Gray, 349 ; Painter v. Mayor, etc., 46 Penn. St., 213; Allen v. Willard, 57 id., 374; De Forrest v. Wright, 2 Mich., 368; Pfau v. Williamson, 63 Ill., 16;. Logansport v. Dick, 70 Ind., 79; and authorities cited.
In this case the Union Compress Company exercised a distinct and independent employment. It was engaged in' the business of compressing cotton. It received cotton indiscriminately from the owners for compression and gave them a receipt for it and stored it as it saw fit. At the time of the fire in question, it had stored for compression at the north end of Main street 3900 bales of cotton, of which the defendant and the Little Rock & Memphis Railway Company had executed bills of lading for 2660 bales, the defendant for 1460 and the Little Rock & Memphis Railway Company for about 1200. It does not appear who held the receipts of the compress company for the remaining 1240-bales. None of it, it seems, was stored for compression in the first instance by either of the railroad companies mentioned. Their bills of lading were severally executed by them after the cotton had been stored and receipted for by the compress company. The course of conduct pursued by the defendant in respect to this cotton was : When the-owner requested, it gave bills of lading in exchange for the receipts of the compress company, and immediately notified! the company of the fact, and directed it to compress and put the cotton on the cars for shipment. The cotton was-not actually delivered to the defendant for shipment until it was compressed, neither was it understood that it should be. There was no evidence tending to prove that the defendant exercised any control over the cotton until it was loaded upon its cars, or over the place where it was kept. Until it was placed upon its cars it assumed no care or custody of it. All that it acquired was the right to ultimate possession, which passed to it by the original depositors transferring to it the receipts of the compress company. California Ins. Co.v. Union Compress Co., 133 U. S., 387.
3. Railway ■not estopped by when1 °f lading But it is contended that because an act of the general assemt,ly °f this State, entitled “An act to regulate the duties of warehousemen, transportation companies and others,” approved March 15, 1887, prohibits all warehousemen and carriers, under a penalty, from issuing receipts or bills of lading, except for goods actually received into their possession, the defendant was estopped to deny that it had the possession of the cotton for which its bills of lading had been issued. But we do not think so. The act was passed to protect bona fide holders of the receipts of warehouse-men and bills of lading of carriers. Prior to the passage of this act, it had been held by the Supreme Court of the United States that the master of a vessel or the agent of a railroad company has no authority to sign a bill of lading for goods not actually put on board of the vessel, or actually delivered for transportation, and, if he does so, his act does not bind the owner of the ship, or the railroad company, as the case may be, even in favor of a bona fide purchaser of the goods. Schooner Freeman v. Buckingham, 18 How., 182; The Lady Franklin, 8 Wall., 325; Pollard v. Vinton, 105 U. S., 7; St. Louis, etc., Railway Co. v. Knight, 122 U. S , 79, 87. The same doctrine was held by other courts of last resort, while by a few it was repudiated. In this State the law in this respect was unsettled until the act of March 15th was enacted.
In order to protect the holders of bills of lading given by carriers for goods, this act, among other things, provides: “ That no master, owner or agent of any boat or vessel of aay description, forwarder or officer or agent of any railroad, transfer or transportation company, or other person' shall sign or give away any bill of lading, receipt or other voucher or document for any merchandise or property by which it shall appear that such merchandise or property has been shipped on board of any boat, vessel, railroad car or other vehicle, unless the same shall have been actually shipped and put on board, and shall be at the time actually on board or delivered to such boat, vessel, car or other vehicle, or to the owner or owners thereof, or his or their agent or agents, to be carried and conveyed as expressed in such bill of lading, receipt or other voucher or document.”
It further provides that such bills of lading and receipts shall be negotiable by written indorsement thereon, and the delivery thereof so indorsed, and that any and all persons to whom the same may be transferred shall be deemed and held to be the owner of the .property for which the same were given “ so far as to give validity to any pledge, lien or transfer given, made or created thereby, as on the faith thereof,” and that “ no property so stored or deposited, as specified in such bills of lading or receipts, shall be delivered except on surrender and cancellation of such receipts and bills.of lading;” and that every person aggrieved by any violation of -the act may maintain an action against the person or corporation violating it, to recover all the damages he may sustain by reason of the violation.
The main object of the act is to fix the liability of ware-housemen, common carriers, and other persons named in the act, to the holders of their receipts or bills of lading. To do this it prohibits them from issuing the same, except for property in their actual possession, and from selling or encumbering, shipping or transferring, or permitting to be shipped, transferred, or removed beyond their control, the property for which a receipt or bill of lading has been given, without the written assent of the person or persons holding such receipt or bill of lading. Their liability for a violation of the act is limited to the persons aggrieved, who are the persons interested in the property described in the receipt or bill of lading. It does not undertake to define the duties ■and liabilities of the warehousemen, carriers, and other persons named therein, to third persons, and does not change their rights, relations, duties or liabilities to such persons, b>ut leaves them as they were before its enactment. Hence there is nothing in the act. or policy of the act, to estop •them from showing, in actions like this, that the property •for which their receipts or bills of lading were given was not in their actual possession.
If the Union Compress Company exercised a distinct and ■independent employment, and the cotton was in its custody, control and possession, and the defendant had no right to control or direct it in the management and storage of the cotton in question, it was not responsible for its (compress company’s) acts or negligence as principal or master. There was ■no evidence of such a right. Neither was it claimed or alleged, nor was there any evidence to show, that the storage of the cotton with the compress company was a nuisance per se, but, on the contrary, it was alleged by the plaintiffs in their complaint that it was “ negligently destroyed by fire, which was caused by the defendant by reason of its carelessness .and negligence in storing and keeping said cotton, and operating its said road ; which fire the defendant by the use of due care could have prevented and stayedclearly admitting that the fire resulted from the manner in which the cotton was stored and kept, and that it could have been prevented by due care. Moreover, there was no evidence, that any of the cotton, for which the defendant executed bills of lading, was placed and kept in the street.
The instructions asked for by the plaintiffs were properly refused. St. Louis, Iron Mountain & Southern Railway Co. v. Commercial Union Ins. Co., 139 U. S., 223.
The refusal of the court to admit the testimony of Dorsey Allen, if it was competent for any purpose, was not prejudicial to any one. There was no foundation for it in the evidence. The uncontradicted evidence adduced at the trial •showed that no locomotive had passed the cotton at the foot •of Main street later than 2:40 in the afternoon of the day on which the fire occurred, and that, this being true, the fire ■could not have been caused by a locomotive.
Judgment affirmed.