Equitable Powder Mfg. Co. v. St. Louis & S. F. R. Co.

• Decision Date: 11 November 1912
• Parties: EQUITABLE POWDER MFG. CO. v. ST. LOUIS & S. F. R. CO.
• Court: Arkansas Supreme Court

150 S.W. 1028

EQUITABLE POWDER MFG. CO. v. ST. LOUIS & S. F. R. CO.

Supreme Court of Arkansas.

November 11, 1912.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by the Equitable Powder Manufacturing Company against the St. Louis & San Francisco Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is the second appeal in this case. See Equitable Powder Mfg. Co. v. St. L. & S. F. R. Co., 99 Ark. 497, 138 S. W. 964. Appellant sued appellee for the value of a car of powder which it had undertaken to carry, but which it is alleged that appellee negligently delivered to a stranger, whereby it was lost to appellant. Reference is made to the opinion on the former appeal for a further statement of the issues and for a statement of the facts.

On the retrial of the case additional facts were introduced in evidence which are as follows:

B. W. Pulling, a witness at the first trial, testified that he had no authority from the Wise-Moist Coal Company or the Wise-Moist Coal & Lumber Company to receive the shipment of the powder in question for them. On cross-examination he admitted that he had testified on the former trial of the case, and that the testimony there given by him was true. Reference is made to the opinion on the former appeal for this testimony.

R. E. Moist testified: "I am president of the Wise-Moist Coal & Lumber Company and of the R. E. Moist Company. Each company had the same officers, and were engaged in the same business. The former company had its offices at Oklahoma City, Okl., and the latter at Henryetta, Okl. On October 13, 1908, I wrote to B. W. Pulling, and directed him with regard to the purchase of the powder, and signed it `Wise-Moist Coal & Lumber Company.' On November 16, 1908, I wrote him a second letter in regard to the powder, and signed it, `The R. E. Moist Company.' As president and treasurer, I expected the powder to be used in the mines at Henryetta, and after the powder was purchased I was notified of the purchase by B. W. Pulling." He was asked: "State whether or not you, as president of the Wise-Moist Coal & Lumber Company, knew of the purchase and delivery of the powder, and state whether or not you made any objection to such purchase and delivery?" To which he answered: "Yes; I knew of the purchase and did not make any objection." Again he was asked: "Who, if any one, was authorized to represent both of these companies (referring to the Wise-Moist Coal & Lumber Company and the R. E. Moist Company) at Henryetta, Okl., during the months of October, November, and December, 1908?" To which he answered: "B. W. Pulling." R. E. Moist was also asked: "State whether or not he [referring to B. W. Pulling] had full and complete authority to represent the Wise-Moist Coal & Lumber Company during the months of October and November and December, 1908?" To which he answered, "Yes; at Henryetta."

Other facts will be referred to in the opinion.

The court instructed the jury, and in addition thereto, at the request of appellee, propounded to the jury the following special interrogatory, and instructed the jury to make a special finding of facts thereon, to wit: "Did B. W. Pulling at the time the powder was delivered...