Chicago, Rock Island & Pacific Ry. Co. v. Burkholder & Tuggle
| Decision Date | 04 June 1917 |
| Docket Number | 19 |
| Citation | 195 S.W. 1073,129 Ark. 316 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RY. CO. v. BURKHOLDER & TUGGLE |
| Court | Arkansas Supreme Court |
Appeal from Logan Circuit Court, Southern District; James Cochran Judge; affirmed.
STATEMENT BY THE COURT.
The complaint alleged substantially that the plaintiffs appellees here, sold 2,000 pounds of garlic to John Bonura & Co. of New Orleans, La., for ten cents per pound on the condition that the vendee should inspect the garlic when it reached New Orleans and that it should be in good merchantable condition. On the 10th of August, 1914 plaintiffs delivered 25 sacks, containing 2,000 pounds, of garlic to the defendant, Chicago, Rock Island & Pacific Railway Company, appellant here, for shipment. The garlic was consigned to shipper's order with directions to notify John Bonura & Co. The defendant shipped the garlic over its line to Memphis, and thence over the Illinois Central to New Orleans. It was alleged that the defendant negligently and carelessly failed to place the garlic properly in the car and as a result the garlic, when it reached New Orleans, was so damaged that it was unmerchantable, which fact was known by the defendant's delivering carrier at New Orleans; that John Bonura & Co., on account of the damaged condition of the garlic, refused to accept the same and pay plaintiffs the purchase price; that thereupon plaintiffs were compelled to dispose of the garlic at such price as they could obtain which they did, and received therefor $ 50.34; that plaintiffs were therefore damaged by the defendant's negligence in the sum of $ 149.66, for which they prayed judgment.
The defendant denied specifically each of the allegations of the complaint.
That the sale was made by the plaintiffs, and the shipment made over defendant's line, and the damage caused as alleged in the plaintiff's complaint is established by their testimony and is not disputed by the testimony on the part of the defendant.
The only grounds urged for reversal of the judgment are that the court erred in its ruling in the admission of certain testimony, and that the verdict is excessive.
When the garlic reached New Orleans, Bonura & Co. refused to accept the same, whereupon the delivering carrier notified the shippers, who advised the carrier to deliver the garlic to the Foto Commission Company of New Orleans, which company sold the garlic for $ 74.82, as shown by the account sales as follows:
21 1/2 sacks garlic 1147 at 6c
$ 68.82
8 hpr. loose garlic at 75c
6.00
$ 74.82
3 1/2 sacks lost in screening
$ 16.80
Freight charges
.20
Drayage, storage, commission
7.48
$ 24.48
$ 24.48
Net proceeds
A witness who was the secretary-treasurer and the general manager of the commission company, testified that the above was the original account of sales which his company rendered to the plaintiffs immediately after the sale was made.
The record shows that "defendant objects to account sales being introduced," but the record does not show any exceptions to the ruling of the court.
One of the plaintiffs, over the objections and exceptions of the defendant, testified that he received front the Foto Commission Company $ 50.34 for the garlic, which witness explained was the amount the commission company sold the garlic for, less the expenses, consisting of freight charges and commissions incurred by the commission company in handling the garlic for plaintiffs.
The defendant asked a peremptory instruction, which the court refused, and to which ruling proper exceptions were saved.
The jury returned a verdict in favor of the plaintiffs for the sum of $ 149.66, for which judgment was entered, and the cause is here on appeal from that judgment.
Judgment affirmed.
Thos S. Buzbee and Geo. B. Pugh, for appellant.
1. The verdict is excessive. No sale was proven to Bonura & Co. The actual loss was only $ 5.20.
2. The so-called "account sales" was not admissible as evidence. 1 Elliott on Evidence, § 458; 83 Ark. 331; 72 Id. 314; 105 Id. 130; 89 Id. 591; 103 Id. 528.
Kincannon & Kincannon, for appellees.
1. The verdict is not excessive. The sale and loss were proven. 120 Ark. 119. Notice of the damage was given. 120 Ark. 119; 91 Id. 412; 98 Id. 353.
2. The account of sales was properly admitted. 113 Ark. 417; 115 Id. 538. The only question here is one of fact, and the verdict is conclusive. 113 Ark. 471; 174 S.W. 547 1189.
OPINIONWOOD, J., (after stating the facts).
The court did not err in refusing appellant's prayer for a peremptory instruction. The undisputed evidence shows that the sale of the garlic was made at the stipulated price of $ 200; that same was shipped in good condition over the appellant's railway, and that when it arrived at New Orleans it was in a damaged condition, and that on account of such condition the vendee refused to accept and pay for the same.
The above testimony was sufficient to warrant the court in submitting to the jury the issue as to whether or not the appellees were entitled to damages on account of the negligence of appellant as charged in appellee's complaint.
Although the appellant objected to the introduction in evidence of the account of sales, it did not except to the ruling of the court in overruling its objection and in...
To continue reading
Request your trial
-
Shinn v. State
...raised on his part. Where no objection is raised, its admission will not be reviewed on appeal. 130 Ark. 111; 101 Ark. 443; 99 Ark. 462; 129 Ark. 316. appellant answered a number of the questions propounded to him in the negative, he has no right to complain. A party cannot complain of the ......
-
Missouri Pacific Railroad Company v. Bell
... ... received diverting the shipment to Welch & Welch, Chicago, Ill. The car of sweet potatoes was delivered ... to them ... Chicago, R. I. & P ... Ry. Co. v. Burkholderses. Chicago, R. I. & P ... Ry. Co. v. Burkholder & Tuggle ... ...
-
Cain v. State
...permitting the State to prove that gambling was carried on at other places which were owned and controlled by the defendant. 130 Ark. 111; 129 Ark. 316; Ark. 358; 130 Ark. 122; 131 Ark. 445. It was not error for the State to prove by witness Page, on cross examination, that he had been conv......
-
Briscoe v. State
...objected thereto and sustained an adverse ruling by the court on the objection, afford no ground for review of the instructions on appeal. 129 Ark. 316; 96 Ark. 52. objection that an instruction assumed a fact or facts as proved, and is misleading for that reason, will not be considered on ......