Hines v. Mason

• Citation: 221 S.W. 861,144 Ark. 11
• Decision Date: 10 May 1920
• Docket Number: 389
• Parties: HINES v. MASON
• Court: Supreme Court of Arkansas

221 S.W. 861

144 Ark. 11

HINES v. MASON

No. 389

Supreme Court of Arkansas

May 10, 1920

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; affirmed.

Judgment affirmed.

Troy Pace and Ponder & Gibson, for appellant.

1. Appellee ordered the car October 9, 1918. It was placed for him at Bradford on that date. This was a compliance with the order and he can not recover. In the absence of an agreement to provide cars at a particular time a carrier is obligated to exercise only due diligence to furnish freight cars within a reasonable time. The duty to furnish cars does not include the duty to carry them by special train. 10 C. J. 72-3; 164 Ill. 310; 74 A. 227; 8 L. R. A. (N. S.) 115. Where a railroad is not required by the order for cars to furnish them at any particular hour, a delivery at any hour of that day is sufficient. 19 S.W. 53. The Arkansas statute requiring carriers to furnish transportation facilities for the carriage of freight is not intended to make the duty an absolute one, but is simply declaratory of the common law and does not require the carrier to provide in advance for any unexpected rush of business. 77 Ark. 357; 95 S.W. 170; 99 Id. 375; 10 C. J. 74; 85 Ark. 293; 105 Id 415; 113 Id. 215; 91 Id. 198.

If appellant furnished a car within a "reasonable time" it complied with the law. 4 R. C. L., § 426; 241 U.S. 55; 242 Id. 120; 44 L. R. A. (N. S.) 643; 141 P. 442; 202 F. 745.

The court erred in its instructions. The proof was that there was an unprecedented demand for cars which could not have been foreseen or expected. 79 Ark. 62; 10 C. J. 74; 237 U.S. 121; 85 Ark. 293; 77 Id. 357.

2. Under the third provision in the bill of lading the cattle were not to be transported within any special time, nor delivered at destination at any particular hour, and in any suit for loss, damage or delay, negligence shall not be presumed nor inferred from mere delay. Instruction No. 2 for appellant should have been given. The clause in the contract was based on a valuable consideration and was a valid defense. 113 Ark. 688; 114 Id. 676; 138 Id 322; 172 Id. 353; 128 Id. 662.

3. Appellee can not recover on account of failure to comply with the seventh provision of the bill of lading as to notice. 243 U.S. 592; 241 Id. 190; Ib. 87; 127 Ark. 261; 90 Id. 308; 127 Id. 261. See, also, 10 C. J 381-340; Meckie on Carriers, § 2085; 167 N.W. 546.

The burden was on plaintiff to show negligence. 240 U.S. 632; 243 F. 91; 22 L. R. A. (N. S.) 975, note; 211 S.W. 103.

4. The court erred in its instruction as to the measure of damages. 10 C. J., p. 77; 4 R. C. L. 389; 96 Ark. 384; 92 Id. 573; 126 Id. 103; 69 Id. 150; 92 Id. 574; 127 S.W. 568.

5. The notice required could not be waived. 10 C. J. 340; 241 U.S. 190; 206 S.W. 638; 250 F. 272; 201 S.W. 865.

Boyce & Mack, for appellee.

1. The jury were properly instructed and the verdict on the ground of negligence is amply supported by the evidence. 131 Ark. 237; 113 Id. 215; 132 Id. 446; 213 S.W. 777.

2. The stipulation as to notice of damages may be waived. 89 Ark. 154; 66 Cyc. 509.

3. The instruction as to the measure of damages was correct. 48 Ark. 502; 73 Id. 112; 92 Id. 573; 4 R. C. L., § 389; 113 Ark. 215.

4. The notice was sufficient under the contract and the question of waiver cuts no figure. 241 U.S. 190.

OPINION

WOOD, J.

This suit was instituted by the appellee against the appellant to recover damages alleged to have accrued by reason of appellant's failure to furnish a car for the shipment of cattle.

The appellee alleged, in substance, that he made a demand in writing of the appellant to furnish a car, suitable for shipping cattle, to be placed at Bradford on the 9th of October, 1918; that on the 8th of October he placed his cattle, consisting of 38 head, in the stock pens of Bradford to be loaded in such car for the purpose of shipment by appellant's regular stock train, which passed Bradford station at 2 a. m. every Wednesday morning; that appellant carelessly and negligently failed to furnish the car as demanded by the appellee in time for the regular stock train on the morning of October 9th; that by reason of such failure the appellee was unable to ship his cattle until 5 p. m. of that day; that in consequence thereof appellee's cattle did not reach their destination until 4 p. m. October 11th and were not placed on the market until October 14th, whereas, if the car had been furnished as ordered the cattle would have reached their destination in time for the market of October 10th and 11th; that appellee, by reason of the delay, was compelled to purchase extra feed for the cattle in the sum of $ 48.19; that there was a shrinkage of at least forty pounds on each head of cattle, which amounted to the sum of $ 106.40 and a decline in the market value during the delay in the sum of $ 159.75. Appellee prayed judgment in the sum of $ 314.34.

The appellant denied all the material allegations of the complaint and set up that at the time the car was ordered appellant did all in its power to furnish the car without discrimination as to other customers or places. It alleged that at the time the car was ordered there was an unprecedented press of business, such that appellant could not by ordinary prudence and the usual course of traffic contemplate. Appellant also set up that there was a provision in the contract of shipment to the effect that the cattle were not to be transported at any specified time or delivered at any particular hour nor in season for any particular market; that in any suit for loss, damage, or delay, negligence should not be presumed or inferred from mere proof of delay. That the contract also contained the following provision:

"That the second party will notify in writing the nearest station agent or general officer of one of the carriers concerned regarding any loss or injury from delay or otherwise to the live stock covered by this contract in time to enable said agent or officer to examine said stock before it is removed from the unloading pens or mingled with other stock; that if claim should be presented for said loss or injury that written notice to that effect will be filed with the agent at point of origin or destination within ninety days, and verified itemized claim within 125 days after the loss or injury occurred, and that failure to comply with the provisions of this section shall be a bar to recovery for such loss or injury."

Appellant alleged that the appellee failed to comply with the above provision of the contract in time to enable appellant to examine the cattle before they were removed from the unloading pens or mingled with other stock; that the appellee failed to give written notice to the appellant at the point of origin or destination within 90 days of the date of such claim for injury to his cattle; that he also failed to deliver to appellant's agent, at the point of origin or destination, within 125 days after the loss or injury occurred, a verified itemized claim as provided in the contract; that by reason of the appellee's failure to comply with the contract in these particulars he is barred from recovering damages for his alleged loss or injury; that, by the terms of the contract, appellee assumed all expenses of feeding, watering, bedding, or otherwise caring for the cattle.

There was a trial before a jury which resulted in a verdict and judgment in the sum of $ 200. From that judgment is this appeal.

The appellant first contends that, inasmuch as appellee by written order applied for a car to be placed at Bradford on October 9, 1918, it complied with this request when it furnished a car for appellee's use at Bradford by 11 a. m. of that day.

The appellee testified that, at the time he applied to appellant's station agent at Bradford for the car, he told the agent that he wanted a car to ship out on the regular stock train. The appellant had two regular stock trains a week on which it transported cattle. These trains came through on Wednesdays and Sundays, somewhere from 1 a. m. until 7 or 8 a. m. They were hardly ever on time. They usually shipped from 3 to 5 a. m. Appellant would not ship out cattle on any other day. Appellee always shipped out on one of these trains.

This is not a suit on a contract between appellant and appellee to furnish a car at a certain time, but it is an action for failure to furnish cars founded on section 6808 of Kirby's Digest.

The law applicable to such cases is declared by us in St. L. S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 357, 92 S.W. 531, as follows:

"The statute did not intend to make the duty of carriers to furnish transportation facilities an absolute one, for it would be unreasonable to conclude that the Legislature intended to impose upon them duties that under certain conditions would not be anticipated by them, and which it would be impossible to perform, and yet for such nonperformance to exact of them heavy penalties. The statute under consideration is but declarative of the requirements of the common law as to the duty of furnishing transportation facilities. After declaring what that duty is, it prescribed the penalty for its nonperformance. A common carrier for such goods as he undertakes to carry is bound to provide reasonable facilities of transportation to all shippers at every station who, in the regular and expected course of business, offer their goods for transportation. The carrier is not required to provide in advance for any unprecedented and unexpected rush of business, and therefore will be excused for delay in shipping, or even in receiving goods for shipment, until such emergency can in the regular and usual course of business be removed." See, also, St. L. S.W. Ry. Co. v. Leder, 79 Ark. 59, 95 S.W. 170; Wynne...