Dickinson v. Robertson

• Decision Date: 21 June 1920
• Docket Number: 65
• Citation: 223 S.W. 12,144 Ark. 515
• Parties: DICKINSON v. ROBERTSON
• Court: Arkansas Supreme Court

223 S.W. 12

144 Ark. 515

DICKINSON v. ROBERTSON

No. 65

Supreme Court of Arkansas

June 21, 1920

Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.

Affirmed.

Thos S. Buzbee, Geo. B. Pugh, and Chester L. Johnson, for appellants.

1. This suit is the result of the car shortage in the fall of 1916 caused by the unprecedented movement of freight to the seaboards by reason of the war. The law is well settled in this State that carriers, while bound to provide reasonable facilities for shippers of goods, are not required to provide in advance for an unprecedented and unexpected rush of business as is shown here and will be excused for delay until the emergency can, in the regular course of business, be removed. 77 Ark. 357; 217 U.S. 136. The defendant was not liable under the evidence here. There was no discrimination. 77 Ark. 357.

2. According to the testimony plaintiff did not suffer any peculiarly loss from defendant's failure to furnish cars. The loss is purely speculative and prospective, and the court erred in its instructions as to the measure of damages.

Chas. B. Thweatt and Emerson, Donham & Shepherd, for appellee.

The law of this case is settled by 77 Ark. 357; 120 Id. 119; 105 Id. 415; 81 Id. 373; 85 Id. 311, and the court followed the law in its instructions. The measure of damages was correctly stated by the court in instruction No. 3. 3 Hutch. on Carriers, par. 1366; 73 Ark. 112; 74 Id. 358.

OPINION

WOOD, J.

Appellee was engaged in the business of buying and selling hay during the months of September, October, November and December, 1916. Appellee ordered of appellant 125 cars to enable him to ship the hay from various stations on appellant's railroad. He was furnished 27 cars. The box cars, such as appellee ordered, would hold from ten to fifteen tons of hay, and if appellant had furnished the cars ordered by appellee for the shipment of the hay, he would have realized a profit at the current market price of hay during that time of from 50 cents to $ 1.50 per ton, which amounted in the aggregate to the sum of $ 1,173, all of which he lost by reason of appellant's refusal and failure to furnish the cars as ordered by the appellee.

Appellee instituted this action against the appellants, and alleged substantially the above facts in his complaint, and filed therewith as exhibit "A" an itemized statement of the number of cars ordered during the time mentioned; the number furnished; the price paid per ton when purchased and price paid for same when sold. He alleged actual damage in the above sum. Appellee also alleged that during the time mentioned the appellants were furnishing cars to others and in so doing discriminating against the appellee. On account of the alleged discrimination appellee prayed that he might have judgment for double the amount of the actual damages he had sustained.

The appellants denied the material allegations of the complaint and set up that the failure to furnish appellee all the cars alleged to have been ordered by him was caused by reason of the war activities of German submarines which resulted in a lack of sufficient facilities on the Atlantic seaboard of unloading cars promptly upon reaching the ports, which deprived the appellants of the control and use of their cars; that appellant's freight equipment was further overtaxed because of the increase of the price of cotton in 1916 and an early harvest of that crop; that appellee's business was mostly interstate and to have furnished him with all the cars ordered at the time the orders were placed would have interfered with appellant's interstate commerce and would have resulted in giving preference to appellee's intrastate business and thus would have discriminated against those making interstate shipments as well as against others who were making intrastate shipments, in violation of the laws of the State of Arkansas and also of the United States.

The testimony of the appellee and other witnesses introduced in his behalf tended to establish the facts as above set forth and as alleged in appellee's complaint. Appellee's testimony shows that he ordered 61 cars during the month of September and received 5 or 6. In October he ordered 27 cars and got 3; in November he ordered 25 cars and received 5 or 6; in December he ordered 21 cars and got 9. Of the 125 cars ordered he received 27 cars. Other people were getting cars for the shipment of their hay after appellee had placed his orders for the cars and at the same time cars were refused him. He took the matter up with the local agent almost daily and also with the superintendent of the car service. Appellee agreed to handle about 65 tons of hay of one Fisher, paying him the market price for same, but was compelled to cancel his contract with Fisher because appellee could not get cars to ship the same.

The testimony of witness Fisher on behalf of the appellee corroborated the testimony of the appellee as to this transaction, and his testimony further shows that, after delivering three cars of hay which he had contracted to sell to the appellee, appellee could not get any more cars, and he then sold the balance to one Sims, who got cars. The first car load was sold to Sims on the 17th of December and shipped about the 19th. The next car was sold on the 30th and shipped January 1st.

The testimony of appellant's local agent, through whom appellee ordered most of the cars, was to the effect that appellant was able to furnish 50 to 75 per cent of the cars ordered through him. The testimony of appellant's superintendent of car service was as follows: "We were able to take care of only 40 to 50 per cent. of the requirements, due to the abnormal amount of business, influenced by war conditions in Europe, and this condition resulted in an unprecedented movement of business to the sea-board and caused the tying up of...