Cantwell v. Pacific Express Co.

• Decision Date: 17 February 1894
• Parties: CANTWELL v. PACIFIC EXPRESS CO
• Court: Arkansas Supreme Court

25 S.W. 503

58 Ark. 487

CANTWELL v. PACIFIC EXPRESS CO

Supreme Court of Arkansas

February 17, 1894

Appeal from Clay Circuit Court, Eastern District, JAMES E. RIDDICK Judge.

STATEMENT BY THE COURT.

This suit was to recover the sum of $ 10.00, the value of what appellant designates "a venison saddle," which was received by appellee company for transportation to St. Louis Mo., and which appellant claims was lost through the negligence of the express company in not shipping as per contract.

The appellant exhibits the receipt of the express company which reads. "Received from R. H. Cantwell the following articles which we undertake to forward, etc." The venison was delivered to the express agent by one Dollins who says he had a one-third interest in it. The receipt, however was made out in the name of Cantwell alone, and Dollins says he delivered receipt to Cantwell. He expected Cantwell to give him a part of the proceeds. The venison was delivered to the agent in the afternoon of the 26th of October, upon promise that he would ship the same that night on the 10 o'clock train. The train upon which the agent expected to ship was the regular mail, and rarely failed to stop at the station. On this occasion, however, it did not stop, and they were not permitted to flag it for the purpose of shipping express matter. It was flagged that night, but did not stop. Appellant testified that the venison was in excellent condition, properly packed, etc., for transportation, when appellee received it. Appellee shipped on the first train going north, which was next morning. According to the proof appellant was to bear the loss if the venison was not sold by consignee before it spoiled. Appellant states that, had the venison been shipped at night, as per contract, the same would have reached consignee and been sold before it spoiled. His consignee at St. Louis states that had the venison been in good condition when received by the express company, it would not have spoiled before its delivery to him. It was full of worms and worthless when he received it. Appellant admits that others were interested with him in the venison.

The court, at the request of appellee, and over objections of appellant, instructed the jury as follows:

"1. Before you can find for the plaintiff in this suit, you must find from the evidence that, had the venison been forwarded on the first train, it would have been in good condition upon its arrival at its destination, that it would have been sold before spoiling, and that the plaintiff would have suffered no loss--and the proof on this point must be clear; and if you do not so find, your verdict will be for the defendant.

"2. If the defendant forwarded the venison on the first regular train for carrying express matter from the station at which it was offered, and delivered it in reasonable time at its destination, then you will find for defendant.

"3. You are instructed that defendant is bound to receive and forward to its destination, in a reasonable time, all freight tendered it for that purpose; that what is a reasonable time within which goods should be forwarded depends upon the character of the article to be forwarded, the season of the year, and the length of time such article would ordinarily keep; and if you find that the venison in controversy in this suit was forwarded within a reasonable time (within) which it could reasonably be expected to keep sound, then you will find for the defendant.

"4. If the jury find from the evidence that other parties than the plaintiff were part owners of the venison in controversy in this suit, you will find for the defendant."

The court, of its own motion, over the objection of ...