Payne v. Orton

• Decision Date: 31 October 1921
• Docket Number: 192
• Parties: PAYNE v. ORTON
• Court: Arkansas Supreme Court

234 S.W. 469

150 Ark. 307

PAYNE v. ORTON

No. 192

Supreme Court of Arkansas

October 31, 1921

Appeal from Little River Circuit Court; James S. Steel, Judge affirmed.

Judgment affirmed.

June R Morrell and James B. McDonough, for appellant.

1. The verdict was not sustained by sufficient evidence. That rain of ten hours' duration on each of four days during which the cotton stood, ends of bales up, on the platform of the carrier, was not sufficient to rot it within twelve days, is a matter of which the courts should take judicial knowledge. 125 S.W. 428; 185 S.W. 768; 17 Am. & Eng. Enc. of L. 909-911; 16 Cyc. 854 et seq.; 3 Ark. 66.

That cotton ginned damp and baled damp will heat and become damaged is a physical fact of which the courts will take judicial knowledge. 35 Ark. 169; 37 Id. 219; 60 Id. 409.

2. Instruction 2 erred in leaving to the jury to determine the meaning of public authority.

3. The evidence does not warrant the placing of the burden of proof as to damage from the inherent nature of the cotton upon the defendant, and an instruction on the burden of proof having that effect was erroneous. Fed. Cas. No. 2691, 3 Cliff. 184; 1 Michie on Carriers, § 1003 and cases cited.

4. A bill of lading which recited that a shipment of cotton was received in apparent good order does not warrant an instruction fixing definite liability upon the carrier as having received the cotton in good order. 1 Michie on Carriers, § 1058 and cases cited.

5. The court erred in modifying instruction 4 requested by the defendant so as to make it read "sole" cause, etc and in refusing to give instruction 5 requested. The jury ought to have been told that plaintiff could not recover damage resulting from the wet, rotted or damaged condition in which it was received. 1 Michie on Carriers, § 1003.

Johnson & Shaver, for appellee.

1. In this case the evidence will be given its strongest probative force in favor of the plaintiff, the appellee, and in testing its legal sufficiency that view of the evidence will be taken which is most favorable to the plaintiff. 123 Ark. 619; 192 S.W. 182; 110 Ark. 182; 113 Id. 471; 194 S.W. 497; 129 Ark. 280; 131 Id. 593.

2. Instruction 2 is a correct declaration of law approved by this court. 117 Ark. 455; 100 Id. 269; 99 Id. 363; 118 Id. 398, 400.

3. A common carrier is an insurer of goods received by it for immediate shipment, and the burden of proof is upon it to show that loss or damage thereto was not caused by its negligence. 26 Ark. 3; 34 Id. 383; 35 Id. 402; 39 Id. 148; 50 Id. 397; 100 Id. 37; 47 Id. 97; 69 Id. 150; 85 Id. 562. Its liability as an insurer begins when it receives the goods for immediate shipment. 60 Ark. 333; 79 Id. 353; 89 Id. 178; 60 Id. 465; 46 Id. 222; 77 Id. 482; 111 Id. 550.

OPINION

MCCULLOCH, C. J.

The plaintiff, H. H. Orton, shipped 75 bales of cotton from Ashdown to Texarkana over the line of the Kansas City Southern Railway Company, then operated under government control. The cotton was delivered to the agent at Ashdown by plaintiff in separate lots on January 3 and January 5, 1920, and bills of lading were issued to plaintiff by the agent on those days. The first lot of cotton reached Texarkana and was delivered to the consignee on January 8, 1920, in undamaged condition, but the remainder of the cotton did not reach Texarkana until January 17 and 19, respectively, and, according to the evidence adduced in the case, it was, when delivered to the consignee, in damaged condition.

It is alleged in the complaint, and the testimony tends to show, that the cotton was in good condition when delivered to the carrier, and that the condition was so noted on the bills of lading, but that when it reached destination it was wet, partly rotted and had to be "reconditioned," according to the terms used by the witnesses, which means that the damaged portion had to be picked off and the cotton re-baled. According to the evidence of plaintiff, there was a total loss of 4247 pounds, of the market value of 26 1-2 cents per pound, making a total damage of $ 1125.45.

The answer of defendant contains a denial of all the allegations of the complaint with respect to negligence on the part of those operating the railroad, and also with respect to the damaged condition of the cotton, and alleges that the damage was due entirely to the condition the cotton was in at the time it was delivered to the carrier.

The trial resulted in a verdict in favor of plaintiff for the sum above named, as shown by plaintiff's testimony. It is earnestly contended that the evidence is insufficient to sustain the verdict.

There is a conflict in the evidence, but it is sufficient to sustain the verdict either way as to the extent of the damage to the cotton and the cause of the damage, whether resulting entirely from the condition it was in when delivered to the carrier or from the delay in transportation. The plaintiff himself and other witnesses testified that the cotton was not wet nor in bad condition otherwise when delivered to the carrier, but that when received at Texarkana it was wet at the ends and rotten, and that a considerable quantity, aggregating 4247 pounds, had to be picked off and the remainder re-baled. There was also testimony showing that the cotton was shipped in open cars and was exposed to rain and snow which fell in unusual quantities and continuously during the period of delay in transportation. On the other hand, witnesses introduced by defendant testified that the cotton was very wet and in damaged condition when it was delivered to the carrier. There being a conflict in the testimony on all of the issues, we are not at liberty to disturb the findings of the jury.

The court gave instructions requested by plaintiff, and also gave a number of instructions requested by defendant, but refused to give three of the instructions requested by defendant, one of which was a peremptory instruction. The court also modified some of the instructions requested by defendant. Assignments of error are made in regard to each of the rulings of the court in giving, refusing or modifying instructions. The second instruction requested by plaintiff reads as follows:

"You are instructed that the defendant is in effect an insurer of all goods received for immediate shipment against all losses, or damage, except those which arise from an act of God, of the public enemy, of public authority, of the shipper, or from the inherent nature of the goods shipped, and the burden of proving that the loss or damage arose from any of these excepted acts rests upon the defendant, and said defendant is still liable for any loss or damage arising from any of said excepted acts if the loss or damage would not have occurred if there had been no negligence on the part of the defendant or his employees."

The criticism now made of this instruction is that it should have defined the term "public authority" or omitted the term from the instruction, and that likewise the reference to "the public enemy" should have been omitted for the reason that there was no evidence tending to show that the damage resulted from that cause. It is not possible that prejudice resulted to defendant from the inclusion of these terms in the instruction or in the failure of the court to give a definition of what constituted "public authority." It is true that there is no evidence at all that the damage resulted either by the act of the public enemy or any public or governmental authority, but, inasmuch as these conditions would...