Chicago, Rock Island & Pacific Railway Company v. Ingraham
| Decision Date | 26 October 1914 |
| Docket Number | 190 |
| Citation | 170 S.W. 232,114 Ark. 506 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. INGRAHAM |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.
Judgment reversed and cause dismissed.
Thos S. Buzbee and Geo B. Pugh, for appellants.
1. Johnson, the soliciting freight agent for the Frisco railroad, had no authority to enter into any such contract as is alleged by appellee; but even if he had made the contract alleged, it would not have been binding. He had no authority to make a contract contrary to the provisions of the tariff. 106 Ark. 237; 100 Ark. 22; Barnes on Interstate Transportation, § 446.
2. Appellant's agent not only had the legal right but it was his duty, to refuse to deliver the car at Oklahoma City without the production of the written contract of the Arms Palace Horse Car Company.
3. The evidence is wholly insufficient to show that the death of the horse resulted from the failure of the appellee to obtain the palace car for him to ride in.
4. The death of the horse was not the proximate result of the refusal of appellant to deliver the car to appellee. If appellee was entitled to the car and appellant wrongfully refused to deliver it, the latter would be liable only for damages resulting from the delay incident to procuring another car. 66 Ark. 68; 87 Ark. 576; 101 Ark. 90; 41 L. R A. 794; 75 Am. St. Rep. 685.
John D Arbuckle and C. A. Starbird, for appellee.
1. Johnson testified that he was authorized to make the contract for the A. P. H. Car Company, and the jury's verdict settles this point contrary to appellant's contention.
2. Appellee and the A. P. H. Car Company made their own contract. Appellant, a third party, could not set aside that contract. It had done its part, so far as the collection of tariff charges was concerned, and any further collection for the use of the car was a question for the M., K. & T. Ry. Co. to dispose of.
3. The allegation in the complaint "that on account of or in consequence of bad ventilation and exposure in said (box) car said horse sickened and died," was not specifically controverted in the answer, and must be taken as true. Kirby's Dig., § 6137. Not only so, but it was also the opinion of two expert witnesses. 83 Ark. 584.
4. The direct injury resulting from appellant's act in taking away the safety appliance, i. e., the A. P. H. car, which appellee at great expense had provided, was the exposure, sickness and death of the horse. The loss is the proximate result of appellant's refusal to deliver the car. 83 Ark. 584; 64 L. R. A. 545.
The plaintiff, L. H. Ingraham, is a farmer and stock raiser in Sebastian County, Arkansas. He owns fine horses which he exhibits at fairs. In September, 1912, he shipped nine horses from Fort Smith to Oklahoma City, Oklahoma, over the St. Louis & San Francisco Railroad to Wister, thence over the Chicago, Rock Island & Pacific Railway to destination, for the purpose of exhibiting his stock at the fair at Oklahoma City, and he remained there with his stock during the progress of the fair, a period of two weeks. He then shipped the horses from Oklahoma City to Muskogee, to exhibit at the fair there, and at the end of the week shipped them back to Fort Smith. One of his horses, a very fine one, which is shown to be of the value of at least six hundred dollars, was found to be sick after the stock reached Muskogee and continued ailing until it died a few days after reaching Fort Smith. Before the horse died, it was found that the ailment was pulmonary pneumonia, and the plaintiff asserts and undertook to prove that the disease was contracted by reason of change from the well ventilated car, especially designed for the shipment of livestock, which was used in the shipment from Fort Smith to Oklahoma City, to a common box car which plaintiff was compelled to use in shipment from Oklahoma City to Muskogee. The car which was used in the shipment from Fort Smith remained in the hands of the defendant company and the latter's agent at Oklahoma City refused to surrender the car for plaintiff's use in shipping the stock to Muskogee over the line of the M., K & T. Ry. Co.
The plaintiff predicates his right to recover from defendant the value of the horse on the latter's refusal to surrender the car to another carrier. The car was one furnished by a corporation domiciled at Chicago, known as the Arms Palace Horse Car Company. That company furnished cars to shippers of livestock upon regular tariff rates, a schedule of which rates had been filed by the company with the Interstate Commerce Commission. The shipper is required to pay for the use of the car in addition to the freight tariff charged by the railroad company, but the railroad company usually procured the car from the Arms Palace Horse Car Company upon the request of the shipper. Usually time is required for the carrier to procure the palace horse car. On this occasion, plaintiff applied to the soliciting freight agent of the Frisco Railroad at Fort Smith for one of the palace stock cars, and the latter undertook to procure it for him in time for shipment on September 17. Plaintiff claims that the agent of the Frisco entered into an oral agreement with him to furnish the car for the trip from Fort Smith to Oklahoma City, thence to Muskogee, and thence back to Fort Smith, and that plaintiff was to have the use of the car thirty days for payment at the rate of $ 16 in addition to the regular freight tariff. The Frisco agent wired to the headquarters of the Arms Palace Horse Car Company, and, in accordance with the request, a car was furnished in which to ship plaintiff...
To continue reading
Request your trial