Missouri Pacific Railroad Company v. Burnett
| Citation | 247 S.W. 1047,157 Ark. 58 |
| Decision Date | 05 February 1923 |
| Docket Number | 137 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY v. BURNETT |
| Court | Supreme Court of Arkansas |
Appeal from Lonoke Circuit Court; George W. Clark, Judge; affirmed.
Judgment affirmed.
Thos B. Pryor and Samp Jennings, for appellant.
The court erred in refusing to give a peremptory instruction for defendant. No agreement between the shipper and carrier relieves the carrier from compliance with the statute. U. S Comp. Statutes, 1918, §§ 8651 and 8653. See also 205 F. 337; 200 F. 597; 186 F. 541; 195 F. 241; 200 F. 406; 225 F. 676; 258 F. 289; 220 U.S. 94; 97 Ark. 82. The contract or bill of lading was binding. It could not be explained or varied by parol testimony. 8 Wall. 325; 19 L. ed. 455; 215 F 886; 270 F. 426; 93 Ark. 537; 82 Ark. 353; 46 Ark. 236; 109 Ark. 537.
W. H. Gregory, J. F. Holtzendorff and Trimble & Trimble, for appellee.
There was no fraud shown in procuring this special contract, and defendant was bound by its terms. 95 Ark. 150; 215 S.W. 596; 140 Ark. 231.
This is an action against a public carrier to recover damages alleged to have been sustained in the transportation of a carload of hogs. The plaintiff alleges that he shipped the hogs under a special contract of sale for a particular purpose and for a stipulated price largely in excess of the market price, and that, by reason of the act of the carrier in unloading the hogs at destination in pens where other hogs had been unloaded, the consignment was rejected by the consignee, and that loss was sustained thereby, the price being reduced to the market price. There were 147 of the hogs in the car, weighing an average of 111 pounds each, and plaintiff had a contract for the sale of the hogs at 9 1/4 cents per pound, the market price of hogs for commercial purposes being considerably less. The aggregate value of the hogs, as per contract price, was $ 1,431.88, and the regular market price for ordinary purposes was $ 478.
On the trial of the cause the following state of facts was proved: Plaintiff was engaged in buying hogs, and had on previous occasions sold what is termed "stocker" hogs to Black & Atchinson, of Kansas City, who operated a serum plant, and one of the requirements of the latter was that the hogs should not be unloaded at public yards or pens.
After securing the contract with Black & Atchinson, and after making purchases in the vicinity of Gurdon, the plaintiff applied to the railroad agent at Gurdon for terms of shipment, stating that he would not ship his hogs unless he could make an arrangement whereby unloading in transit could be obviated. The agent assured plaintiff, so the latter testified, that such an arrangement could be made, and plaintiff gathered up the hogs and loaded them into the car, but when the bill of lading was made out there was nothing in it about not unloading in transit. Plaintiff called the attention of the agent to this fact, and the agent stated that a notation would be made on the waybill, as it had no place in the bill of lading, and assured plaintiff that such a notation would be made for the instruction of the conductors and other trainmen. The agent informed plaintiff that it was necessary that he sign a waiver under the Federal statute requiring live stock to be unloaded for food or rest within twenty-eight hours, whereupon plaintiff signed the waiver, in accordance with the provisions of the statute permitting the time to be extended to thirty-six hours before unloading.
Plaintiff testified that he showed the shipping instructions to the agent, and told him that he would not be able to sell the hogs if they were unloaded in public stockyards or pens at Kansas City, which was the destination under the bill of lading.
According to the testimony adduced by the carrier, the shipment of a carload of live stock from Gurdon to Kansas City would be en route, under ordinary conditions, more than fifty hours.
Defendant's counsel objected to the introduction of the testimony about the agreement to put the notation on the waybill, on the ground that it was in conflict with the Federal statute requiring the unloading of live stock in transit.
There was no proof adduced tending to show whether or not the stock was unloaded prior to reaching its destination at Kansas City, but the proof shows that it was unloaded there, and that Black & Atchinson refused the consignment on that account, their contract with plaintiff to accept the consignment being dependent upon the stock not being unloaded in a public pen or at the stockyards. Mr. Black testified that, under their method of doing business, they could not use hogs thus unloaded in public pens, for the reason that there was danger of exposure to disease.
There was a verdict for the plaintiff for the amount of damages named in the complaint, and the defendant has prosecuted an appeal to this court.
It is earnestly insisted that the court erred in the...
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