Fort Smith Cotton Oil Co. v. Swift & Co.

• Decision Date: 23 January 1939
• Docket Number: No. 4-5292.,4-5292.
• Citation: 124 S.W.2d 1
• Parties: FORT SMITH COTTON OIL CO. et al. v. SWIFT & CO. et al.
• Court: Arkansas Supreme Court

Page 1

124 S.W.2d 1

FORT SMITH COTTON OIL CO. et al. v. SWIFT & CO. et al.

No. 4-5292.

Supreme Court of Arkansas.

January 23, 1939.

Appeal from Circuit Court, Sebastian County, Fort Smith District; J. Sam Wood, Judge.

Action by Swift & Co. and others against Fort Smith Cotton Oil Company and others to recover for the shortage in tank car of cotton seed oil. From the judgment named defendant appeals, and from a judgment in favor of the Missouri Pacific Railroad plaintiffs appeal.

Affirmed.

Hardin & Barton, of Fort Smith, for Fort Smith Cotton Oil Co.

J. W. Jamison, of St. Louis, Mo., and Warner & Warner, of Fort Smith, for St. Louis-San Francisco Ry. Co.

Hill, Fitzhugh & Brizzolara, of Fort Smith, for Swift & Co.

McHANEY, Justice.

Appellants, Lillard and Dunklin, are partners doing business under the firm name of Fort Smith Cotton Oil Company and will be hereinafter referred to as appellants. On January 25, 1936, pursuant to a contract of sale and purchase between appellants and appellee, Swift & Company, the former loaded, at its cotton seed oil mill in Fort Smith, a tank car with cotton seed oil, which tank car was furnished for the purpose by the latter. After being loaded by appellants it was delivered to the Missouri Pacific Railroad to be switched to the connection with the appellee, St. Louis-San Francisco Railway Company, which latter company accepted delivery the same day and undertook to and did transport same to Swift & Company in Chicago. It was shipped by appellants under standard form of bill of lading, which shows it was "Shippers Order," with notice to Swift & Company. It was endorsed by appellants and attached to a draft on Swift & Company which draft was paid on presentation. When the car arrived it was found to be short a net amount of 6,700 pounds, due to a leakage in transit, and demand was made on appellants and appellee railway company to make good the loss to it which was stipulated by all parties to be $620.40. Payment being refused, Swift & Company sued appellants and the railway company. Trial resulted in a verdict and judgment for Swift & Company as against appellants, but in favor of the railway company on the suit against it. From the judgment against them an appeal is prosecuted by appellants, as against Swift & Company only, and there is an appeal by Swift & Company from the judgment in favor of the railway company.

In addition to the facts above stated, it was also stipulated that while said car of oil was in transit, a leakage was discovered in said car at Fayette Junction and traced back to Greenland, Arkansas, only 55 miles from Fort Smith; that the leak was stopped at Fayette Junction and the car was transported on to Chicago and delivered to Swift & Company who paid the purchase price therefor and the freight thereon without knowledge of the loss of 6,700 pounds of oil therefrom. As we understand this stipulation, the leak of the oil began at Greenland, some few miles south of Fayette Junction, and was discovered and stopped at the latter place.

It appears from the record, undisputed, that tank cars are large cylindrical tanks, varying in size from 75 to 85 inches in diameter and from 25 to 30 feet long, on railroad trucks; that they are loaded through the dome at the top in the middle of the tank; that the dome opening is closed by a cap about 15 inches in diameter which screws down over the opening, with two knobs on it which are used in tightening it with a wrench or bar. Inside the dome, there is a handle working on a bracket, attached to a rod which extends to a hole in the bottom of the tank, to the bottom end of which is attached a valve which fits securely in said hole, and operates to open and close the hole by use of the handle in the dome. This rod is called the valve stem. To the opening in the bottom of the tank is attached an outlet pipe, about two feet long, and four or five inches in diameter. It is threaded at the outer end and is used in unloading the tank by screwing onto it a hose or another pipe and opening the valve by use of the handle in the dome. There is also a cap which screws on the end of the outlet pipe, called the outlet cap. It is attached to a chain which prevents its loss when unscrewed from the outlet pipe.

The evidence shows that the proper method of loading a tank car is to remove the outlet cap from the outlet pipe and then close the valve by means of the handle in the dome. If the valve is properly seated, there can be no leak. The tank is then loaded. If there is a leak in the valve, it will drain through the outlet pipe with the cap off, and the valve should be reseated to stop it. If there is no leak, then the cap is tightly screwed on to the outlet pipe with a wrench. This system is adopted to be sure there is no leak in the valve which would not immediately be ascertainable with the outlet cap screwed on, or at all if the cap stayed in place.

For a reversal of the judgment against them, appellants first contend that certain evidence on the part of the railway company and certain rebuttal evidence on behalf of Swift & Company was improperly admitted over their objections. This evidence relates largely to the proper manner or method of loading a tank car with oil and was substantially as outlined above. We think the evidence was competent and proper under the rules announced in Blanton v. Missouri Pac. R. Co., 182 Ark. 543, 31 S.W.2d 947, and Ross v. Clark County, 185...