Chicago, Rock Island & Pacific Railway Co. v. Robinson & Co.

• Decision Date: 27 January 1930
• Docket Number: 102
• Citation: 23 S.W.2d 976,180 Ark. 911
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ROBINSON & COMPANY
• Court: Arkansas Supreme Court

23 S.W.2d 976

180 Ark. 911

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ROBINSON & COMPANY

No. 102

Supreme Court of Arkansas

January 27, 1930

Appeal from Yell Circuit Court, Danville District; J. T. Bullock Judge; reversed.

STATEMENT OF FACTS.

S. L Robinson & Company instituted this action in the circuit court against the Central Railway Company of Arkansas and the Chicago, Rock Island & Pacific Railway Company to recover damages growing out of delay in the transportation and delivery of two cars of sweet potatoes.

On the 12th day of December, 1925, plaintiffs delivered to the Central Railway of Arkansas two cars of sweet potatoes, which were in first-class merchantable order and shipping condition. The Central Railway of Arkansas issued its bill-of-lading, consigning said cars of potatoes subject to shipper's order at Kansas City, Missouri. After the two cars of potatoes had reached their destination at Kansas City, Missouri, and had been there for about thirty-five hours, plaintiff applied to the agent of the Chicago, Rock Island & Pacific Railway Company at Dardanelle, Arkansas, for an order diverting the cars of potatoes to Ogden, Utah. Rockhold, the agent of the Rock Island Railway Company there took up the bill-of-lading, which had been issued by the Central of Arkansas Railway Company, and issued a new bill-of-lading to the plaintiffs, consigned them to Ogden Utah, routed over the Union Pacific Railroad Company's lines. The bill-of-lading contained the following stipulations: "This bill-of-lading is given in exchange for open bill-of-lading, issued by Central Railway of Arkansas, at Plainview, Arkansas, December 12, 1925. Account diverted on instructions of shipper."

Two days before the two cars of potatoes reached Ogden, Utah, the plaintiffs wired the agent of the Union Pacific Railroad Company to divert them to points further west. This was done without the knowledge or consent of either the Central Railway Company, or the Rock Island Railway Company. The substituted bill-of-lading issued by the Rock Island Railway Company was without the knowledge or consent of the Central Railway Company.

When the cars of sweet potatoes reached their destination, they were found to be badly damaged; and this suit was brought upon the refusal of the railroad companies to pay the plaintiffs damages. Other facts will be stated or referred to in the opinion.

The jury returned the following verdict: "We, the jury, find for plaintiffs against both defendants for damages caused while shipment was on Chicago, Rock Island & Pacific Railroad, which we find to be $ 760. And we find for plaintiff against defendant Central Railroad Company $ 380 damages, caused when shipment was not on C. R. I. & P. Railroad. J. J. Cowger, Foreman."

Judgment was rendered upon the verdict, and the case is here on appeal.

Judgment as to Central Railway Company reversed, and cause dismissed, and against Rock Island Railroad Company reversed, and cause remanded.

Thos. S. Buzbee, H. T. Harrison, Geo. B. Pugh and Hays, Priddy, Rorex & Madole and Hill, Fitzhugh & Brizzolara, for appellants.

D. H. Howell, for appellees.

OPINION

HART, C. J., (after stating the facts).

It is earnestly insisted by counsel for appellant, Central Railway Company, that the judgment against it should be reversed, and the cause of action as to it dismissed. In this contention we think counsel are correct. The shipment of potatoes was an interstate one, and the Central Railway of Arkansas was the initial carrier. It issued a bill-of-lading to plaintiffs for the two cars of sweet potatoes consigned from Plainview, a station on its line, to shipper's order at Kansas City, Missouri. Thirty-five hours after the potatoes reached their destination at Kansas City, plaintiffs applied for and received a reconsignment or diversion order from the agent of the Rock Island Railway Company at Dardanelle; but the Central Railway Company did not have any knowledge of the reconsignment or the diversion order issued by the Rock Island Railway Company. Shipment was made and bill-of-lading issued by the Central Railway of Arkansas, on the 12th day of December, 1925; and, the shipment being an interstate one, the case is ruled by the provisions of the Carmack amendment and the decisions of the Supreme Court of the United States construing it.

The rights of the parties in the present case accrued before the Carmack amendment to the Interstate Commerce act was amended by the Cummins act in 1926.

In Gulf, Colorado & Sante Fe Ry. Co. v. Texas Packing Co., 244 U.S. 31, 37 S.Ct. 487, 61 L.Ed. 970, it was held that, by request of the shipper and by action of the carriers in dealing with the freight accordingly, a shipment governed by the Carmack amendment and bills-of-lading thereunder might be diverted from the original destination and the original bills-of-lading be continued in force as applicable to the now destination. There, however, the poultry which was the subject of the shipment was sold while it was in transit to Chicago, and, while the cars were in St. Louis on the side track, the shipper called upon the agent of the initial carrier to divert the shipment to Chicago. It promised to do so, and its agent told the shipper that he would wire a representative of the railway company in St. Louis to divert the cars. No new bills-of-lading were issued, and the shipper was told that the carrier would make proper notification on the original bills-of-lading. Hence the court said that it was fairly inferable from this evidence that the bill-of-lading originally issued was continued in force by action of the parties changing the destination and remained a binding contract when the initial carrier accepted the diversion of the shipment from St. Louis to Chicago. Here the initial carrier did not accept the diversion or reconsignment of the shipment of sweet potatoes from Kansas City, Missouri, to Ogden, Utah. The initial carrier was not consulted in the matter, and did not know anything about the diversion or reconsignment of the sweet potatoes until sometime after it had been made. The purpose of the Carmack amendment was to create in the initial carrier unity of responsibility for transportation to destination. For...