Midland Valley Railroad Company v. Hoffman Coal Company

• Decision Date: 10 May 1909
• Citation: 120 S.W. 380,91 Ark. 180
• Parties: MIDLAND VALLEY RAILROAD COMPANY v. HOFFMAN COAL COMPANY
• Court: Arkansas Supreme Court

120 S.W. 380

91 Ark. 180

MIDLAND VALLEY RAILROAD COMPANY v. HOFFMAN COAL COMPANY

Supreme Court of Arkansas

May 10, 1909

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

The Hoffman Coal Company brought this suit against the Midland Valley Railroad Company in the Sebastian Circuit Court for the Ft. Smith District, to recover damages for an alleged failure of the defendant to furnish cars for shipment of coal from the coal mine of the plaintiff. There was a jury trial and a verdict for the plaintiff in the sum of $ 4,500. From a judgment rendered upon this verdict the defendant has duly prosecuted an appeal to this court.

The abstract of counsel for defendant, now appellant, states the substance of the pleadings, with the action of the court thereon, as follows:

"The complaint in substance alleges the following: That defendant was engaged in operating a railroad in Sebastian County which road reached the coal field of said company, in which were located several coal mines, among them a coal mine operated by plaintiff.

"It is further alleged that the method of mining coal was to shoot down one day a sufficient amount of coal to be loaded on cars the next day, and that it was plaintiff's custom to order, at the end of each day, a sufficient number of cars in which to ship the coal that was shot down at the close of the day on which the cars were ordered; that, in pursuance of this custom, it ordered on the several days set out in the complaint cars sufficient to remove its output, which was alleged to be 250 tons, and that the defendant failed to furnish the cars as ordered. Plaintiff further alleges that the coal was to be shipped to points in Oklahoma, Indian Territory and Texas, under an agreement with the McAlester Fuel Company, with which plaintiff had an arrangement to sell its entire output, and that during the times complained of the said Fuel Company had orders for the said coal in Indian Territory, Oklahoma and Texas, and that plaintiff could and would have sold its entire output through the said Fuel Company at an average profit of seventy-five cents (75c) per ton. After alleging the number of days upon which it ordered cars and that the said cars were not furnished as ordered the complaint further alleges that defendant failed to use due care and diligence to furnish itself with sufficient equipment to carry plaintiff's coal, and that it could have furnished the cars ordered within a reasonable time thereafter but for the negligence of defendant in not providing itself with sufficient equipment. The complaint concludes with the following allegation of damages: 'That if defendant had used due care and diligence it could have furnished itself with sufficient equipment to carry plaintiff's coal, could have furnished cars within a reasonable time after being requested; but by reason of the default of defendant to furnish cars, as hereinbefore alleged, it lost the sale of, and failed to produce, 30,500 tons of coal, which could and would have been sold at the profit aforesaid during said period, to its damage in the sum of $ 22,875.'

"Defendant filed petition to transfer the cause to the United States court. Petition is based upon the contention that, as the complaint shows on its face all the coal shipments for which cars were ordered were interstate shipments, plaintiff's cause of action, if any existed, arose under the provisions of the acts of Congress, and involves the construction of the acts of Congress, and especially of what is known as the Interstate Commerce Acts. The court denied the petition, and defendant excepted.

"Defendant then interposed demurrer to the complaint upon the grounds that it did not state facts sufficient to constitute a cause of action, and on its face showed the court had no jurisdiction. The demurrer further challenged the sufficiency of the complaint upon grounds similar to the grounds set out in the petition to remove the cause to the United States court; the demurrer alleging that plaintiff's cause of action, if any, arose under the acts of Congress, and that it cannot bring suit in the State court for failing to furnish cars for interstate shipments, but that complaints of this kind must be first lodged with the Interstate Commerce Commission. The demurrer was overruled, and defendant excepted.

"Defendant then filed motion to require plaintiff to make its complaint more definite and certain. The motion asks that plaintiff be required to state to what points in Indian Territory Oklahoma and Texas it desired to ship the coal for which the cars were ordered, and to state for what points it ordered cars for the shipment of coal, to what points the cars were to be consigned, and to state the orders it had for the sale of coal which it did not ship, the parties from whom the orders were received, and to set out, by itemized account and bill of particulars, its damage, so that said bill of particulars would show the orders it had for each day defendant failed to furnish cars, from whom the orders were received, the quantity of coal for which given, the number of cars required, and the places to which shipments were to be made. This motion was overruled, and defendant excepted.

"Defendant then filed answer, denying specifically each and every allegation of plaintiff's complaint.

"The defendant, in the second paragraph of its answer, set up the defense that plaintiff, during the times complained of, was a member of a pool, trust and combination organized to control regulate and fix the price of coal, and to limit the quantity of production; that the Fuel Company, through which its alleged sales were made, was also a member of the pool and combination, and that no coal was sold by plaintiff, or contracted to be sold by it, except by and through the said trust and combination; that it had no orders for coal except as a member of and through the said trust, and that it made no profit, and could not and would not have made the profit alleged by it, or any profit, except by the unlawful combination of which it was a member. To this paragraph the court sustained demurrer filed by plaintiff, and defendant reserved its exceptions."

The Hoffman Coal Company had a ten years lease upon 120 acres of land in Sebastian County, under 110 acres of which was a seven-foot vein of coal, which would produce, according to the testimony of the plaintiff, about 7,000 tons per acre, or approximately 700,000 tons for the entire acreage. The Midland Valley Railroad Company began the construction of its line of railroad, and its road was open for traffic in that field in 1903. On the 5th day of December, 1903, the parties to this suit entered into a contract for furnishing cars to appellee for the purpose of transporting its coal.

The contract in substance provided for the building of a spur track to defendant's mine, the coal company agreeing to build a tipple, furnish right of way and the expense of laying track, the defendant to furnish the steel and other necessary appliances to lay the track, and to furnish at the tipple "such a number of cars for the shipment of the coal of the party of the second part, so that the party of the second part should be able to operate its mine not fewer hours per month than ninety (90) per cent. of the hours per month the mines are operated of any other person or corporation on the railroad of the party of the first part, including the mines of the party of the first part." The contract further provided that all coal mined should be shipped over the defendant's road.

There was then introduced in evidence over the objection of defendant a lease for the land upon which plaintiff's mine was located, made by the Hartford Coal Company to the Hoffman Coal Company, November 1, 1904. This lease was for ten years, and provided for the payment of eight (8) cents per ton royalty on all coal mined.

The method of loading coal was to bring it from the underground workings to the tipple, and from the tipple to dump it into the railroad cars. The capacity of the mine, during September, 1906, was 250 tons of coal per day, which was increased to about 350 tons in July, 1907. The custom of ordering cars was by telephoning defendant's agent at Hartford about four o'clock in the afternoon, telling him the number of cars that would be needed next day.

Such other facts as may be necessary to a proper understanding of the issues presented for our determination will be stated in the respective parts of the opinion to which they are applicable.

Judgment reversed and cause remanded.

Ira D. Oglesby, for appellant.

The complaint shows on its face that the cars ordered, and not furnished, were intended for interstate shipments of coal. The court should therefore have sustained appellant's petition to transfer the case to the United States court. 158 U.S. 98; 201 U.S. 321; 76 Ark. 82; 109 F. 831; 42 S.W. 354; Snyder on Interstate Com. Act, pp. 69, 237, 237; sec. 3, Interstate Com. Act. The defendant was not bound to furnish cars for shipments beyond its own line. The demurrer should therefore have been sustained. 46 Ark. 45; 71 Ark. 571; 54 Ark. 22; 74 Ark. 285; 61 Ark. 560; 122 Ill. 506; 31 F. 864; Hutchinson on Car., § 1367; Elliott on Railroads, § 1724. Appellee's business being illegal, it cannot complain because a carrier is not prompt in furnishing transportation. Kirby's Dig., §§ 1972-1982. Appellant could not be compelled to permit its cars to go to foreign roads. Its request for a peremptory instruction should, therefore, have been granted. 40 Mo. 491; 99 N.W. 309; 95 S.W. 170; 92 S.W. 531; 52 S.E. 677; 99 Mass. 508; 61 Ark. 650.

Stewart & Gordon, Read & McDonough and F. A. Youmans, for appellee C. T. Wetherby,...