Arkadelphia Milling Co. v. Smoker Merchandise Co.

• Decision Date: 10 July 1911
• Citation: 139 S.W. 680,100 Ark. 37
• Parties: ARKADELPHIA MILLING COMPANY v. SMOKER MERCHANDISE COMPANY
• Court: Arkansas Supreme Court

139 S.W. 680

100 Ark. 37

ARKADELPHIA MILLING COMPANY v. SMOKER MERCHANDISE COMPANY

Supreme Court of Arkansas

July 10, 1911

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

Callaway & Huie, for appellants.

The milling company, being draymen and engaged in the transportation of goods for hire, are common carriers. 2 Dana 430; 26 Am. Dec. 466; 116 Ky. 907; Hutch. on Car., 61.

McMillan & McMillan, for the Arkadelphia Milling Company.

This court will take that view of the evidence most favorable to the party against whom the verdict was directed. 89 Ark. 372. The milling company was entitled to the same time that the owners would have been entitled to for the removal of the flour from the car. 77 Ark. 487. As to what this time is, see 60 Ark. 380; 89 Ala. 612; 97 Am. St. R. 76; 67 Am. St. R 781; 15 Id. 426.

W. E Hemingway, E. B. Kinsworthy, W. V. Tompkins and James H Stevenson, for St. Louis, Iron Mountain & Southern Railway Company.

The railway company's duty was discharged when it delivered the goods to the agent of the consignee. 119 Ga. 604; 46 S.E. 830; 17 Ill.App. 325; 110 N.Y. 170; 46 N.Y. 578; 38 S.C. 365; 17 S.E. 147; 72 Ill.App. 105. The carrier is not an insurer against loss by accident after notice and a reasonable time in which to remove the goods. 44 N.Y. 505; 133 Mich. 187; 94 N.W. 739; 27 R. I. 231; 61 A. 695; 94 Mich. 133; 55 N.W. 918; 74 Am. St. 320; 89 Wis. 598; 62 N.W. 536; 52 Ark. 26; 60 Ark. 380; 17 Wend. 179; 31 Am. D. 297; 50 N.Y. 121; 62 Ill.App. 618; 28 Ala. 167; 29 So. 203; 30 N.Y.S. 903; 48 N.Y.S. 242; 49 N.Y. 223; 30 Col. 77; 69 P. 578; 97 Am. St. 76.

OPINION

FRAUENTHAL, J.

These were four separate suits instituted by the respective plaintiffs below against the defendants, the St. Louis, Iron Mountain & Southern Railway Company and the Arkadelphia Milling Company, as common carriers for the recovery of the value of certain merchandise which was lost while in the course of transportation. The four cases were consolidated for the purpose of trial, and, after the introduction of all the testimony by the parties, the court directed the jury to return a verdict in favor of the St. Louis, Iron Mountain & Southern Railway Company, and against the Arkadelphia Milling Company, for a recovery in favor of the respective plaintiffs for the amounts of their several claims.

The plaintiffs were engaged in the mercantile business in the city of Arkadelphia, and, through a broker of the White Springs Milling Company, which was located at White Springs, Mo., they, in conjunction with other merchants of said city, made separate purchases about August 25, 1909, of a lot of flour and feed stuff which in the aggregate amounted to one carload. The entire shipment was then delivered by the White Springs Milling Company to the St. Louis, Iron Mountain & Southern Railway Company at White Springs, Mo., in one car, to be carried by it to Arkadelphia; and a bill of lading was issued therefor in which the shipment was consigned to shipper's order, with directions to notify J. W. Patterson, who was one of the purchasing merchants. Invoices for the several amounts of goods purchased by each of the merchants, including the plaintiffs, were by the White Springs Milling Company attached to separate drafts drawn by it on each of them, and all of these drafts were then attached to the bill of lading, and sent to the Elkhorn Bank, located at Arkadelphia, for collection.

The Arkadelphia Milling Company was engaged in the business of transporting goods at the city of Arkadelphia, and this portion of its business was known as and called the Arkadelphia Transfer Company, and will be referred to by that name. It owned a number of transfer wagons, and was engaged in hauling for hire goods and merchandise from the depot to the merchants in said city whose places of business were situated some distance from the depot, and also in hauling goods from these places of business to the depot, as well as from place to place in the city. It was engaged regularly in conveying goods as a business, and not occasionally between said places. It held itself out to the public to transport goods in this way indiscriminately, and undertook for hire, and was under obligation, to carry goods for all persons who chose to employ it. According to the testimony of the manager of the transfer company, it represented and was the agent of the merchants in Arkadelphia for the purpose of receiving from the railroad company goods which were consigned to them, and it carried same to their various places of business. In this way it represented upon this occasion the plaintiffs, as well as the other merchants, relative to this shipment.

According to the custom and usage of the trade at that place, the manager of the transfer company would go each morning to the depot and inquire if any shipments had arrived; and, upon learning that shipments had arrived, he would, upon securing proper release of the goods, transport same to the merchants. In cases where shipments were made with drafts attached to bill of lading, he would by telephone notify the bank holding the drafts, who would then see the merchants and collect same. Upon making such collection, the bank would turn over the bill of lading, duly indorsed by the shipper, to the transfer company, who would surrender same to the railroad company, and the goods would then be turned over by the railroad company to the transfer company, who would transport same to the merchants.

It appears from the testimony on the part of the railroad company that the shipment in question arrived at Arkadelphia on the morning of August 31, 1909, and that its agent notified the manager of the transfer company of its arrival about eight o'clock of the morning of that day; and that the car containing the goods was placed upon a house track for unloading, and was at that place at 7 o'clock A. M. of September 1, 1909. There is, however, a conflict in the testimony as to when the transfer company was notified or learned of the arrival of these goods; but the evidence on the part of the transfer company shows that it probably learned of the arrival of the car containing the goods on September 1, 1909, and that it unquestionably was notified and learned of its arrival not later than eight o'clock on the morning of September 2, 1909. The manager of the transfer company testified that at that hour he communicated with the bank holding the bill of lading and the drafts, and notified it of the arrival of the shipment. And the undisputed evidence shows that the car was on the house track where, according to custom and usage, it was placed for unloading not later than 7 o'clock A. M. of September 2, 1909.

The bank made collection of the draft on the morning of September 2, and the manager of the transfer company testified that it turned over to him the bill of lading, duly indorsed by the shipper, at about four o'clock P. M. of September 2, 1909, and that at that hour he surrendered it to the railroad company, and thereupon obtained the goods and began unloading and transporting same at four o'clock P. M. of September 2. It continued to unload and transport the goods from that time until between four and five o'clock P. M. of September 3, 1909, when the car, and the goods remaining therein, were destroyed by fire. At that time the greater portion of the goods had been removed from the car, and some portions of plaintiffs' goods were destroyed, for which these suits were brought. The fire originated at about 3:30 P. M. of September 3, in a roller mill situated a short distance from the depot, and spread to the depot and this car. The fire occurred through no fault of any of the parties to this suit, and the question involved herein is, upon whom shall the loss of the goods fall?

1. The railroad company was a common carrier of goods, and as such undertook to transport this shipment from White Springs to Arkadelphia. The law not only imposed upon it the duty to carry the goods safely, but it made it also responsible for the proper delivery thereof at the point of destination, and made it during the course of transportation an insurer of the goods against loss from any cause, with certain exceptions. This extraordinary liability as an insurer of the goods continued until it made proper delivery thereof at the point of destination. 2 Hutchinson on Carriers, § 662; 2 Parsons on Contracts, § 183; Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524, 119 S.W. 642; Stimson v. Jackson, 58 N.H. 138; Louisville & N. Ry. Co. v. Gilmer, 89 Ala. 534.

The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination. This delivery may be actual, or it may be constructive; and in either case the liability of the carrier terminates with such delivery. An actual delivery of goods is made when the possession is turned over to the consignee or his duly authorized agent and a reasonable time has been given him in which to remove the goods. When such delivery is thus made, the carrier is fully discharged from further liability. Southern Exp. Co. v. Everett, 37 Ga. 688; Brunswick & W. Ry. Co. v. Rothchild, 119 Ga. 604, 46 S.E. 830. To constitute constructive delivery, the carrier must give notice to the consignee or his duly authorized agent, if that is at all practicable, of the arrival of the goods, and must also give a reasonable opportunity and time thereafter for the consignee or his agent to remove same. When that is done, the liability of the carrier is terminated, whatever its liability may otherwise be.

In the case of Railway Co. v. Nevill, 60 Ark. 375 this...