Railway Co. v. Fire Association

• Decision Date: 28 November 1891
• Citation: 18 S.W. 43,55 Ark. 163
• Parties: RAILWAY COMPANY v. FIRE ASSOCIATION
• Court: Arkansas Supreme Court

18 S.W. 43

55 Ark. 163

RAILWAY COMPANY v. FIRE ASSOCIATION

Supreme Court of Arkansas

November 28, 1891

APPEAL from Columbia Circuit Court, CHARLES W. SMITH, Judge.

STATEMENT BY THE COURT.

The Fire Association of Philadelphia and the Southwestern Commercial Company sued the St. Louis, Arkansas and Texas Railway Company, in the Columbia circuit court, for damages caused by the burning of cotton by a fire on the first day of April, 1887, at Magnolia, Arkansas. Plaintiffs alleged in their complaint that the Fire Association of Philadelphia was a corporation existing under the laws of Pennsylvania, and was engaged in entering into contracts of insurance and taking risks against fire and loss thereby in the State of Arkansas, and that the Southwestern Commercial Company was a corporation organized under the laws of the State of Missouri, and was engaged in buying and selling cotton in this State. That, on the 7th day of January, 1887, the Fire Association of Philadelphia insured the Southwestern Commercial Company to the extent of $ 3000, against any loss which it might sustain by fire consuming or damaging certain cotton on or before the 27th day of May, 1887; that, on the 1st day of April, 1887, a fire occurred which consumed and damaged the cotton insured to the amount of $ 1493 79; and that, in consideration of its liability, the Fire Association, on the 16th day of May, 1887, paid the sum of $ 1478.86, which was the amount of the loss, less a certain discount; and that, on the day following, the Southwestern Commercial Company, in consideration of the payment transferred and assigned to the Fire Association its claims against the defendant for damages by reason of the fire. Plaintiffs further alleged that the fire was caused by the defective condition of a locomotive engine of the railroad company then used in operating its railway; and that, because of an insufficient spark arrester, great and unusual amount of sparks escaped from the engine and burned the cotton.

The railway company answered the complaint and denied the allegations therein as to the cause of the fire; and alleged that the burning of the cotton was the result of and caused by the carelessness and negligence of the Commercial Company in placing the cotton near the track of the defendant and not having the same properly guarded and watched; and that the plaintiffs were foreign corporations and had failed to comply with the act of the general assembly of the State of Arkansas, entitled "An act to prescribe the conditions upon which foreign corporations may do business in this State," approved April 4, 1887.

There was no controversy about the ownership of the cotton or the insurance thereof by the Fire Association. It belonged to the Commercial Company. It was admitted that it was consumed in part, and partly damaged, by fire on the first of April 1887. There was no conflict in the evidence adduced at the trial as to the defendant's locomotive, which plaintiffs alleged caused the fire, being in bad condition at the time the fire occurred. The engineer who was in charge of it says "The engine was disconnected on one side on account of a broken valve. This made it throw out sparks. The engine had been in that condition since that morning. The engine was in good and proper repair up to the morning of the day on which the fire occurred. It had no spark arrester. They are not used on that kind of an engine. There was a netting in the funnel. It had a hole in it, but had been there only since that morning." Another witness testified that it made a noise, as it passed the cotton in question, "just as if one of the valves was out of fix." He said: "It threw out sparks from the smoke-stack when it made the noise. He had noticed something wrong with the engine several times before this. It was in a bad fix. A few days before it set the woods afire going to McNeil, and set a log heap afire twenty feet from the track."

Evidence was adduced tending to prove the following facts: A private platform was constructed by the merchants of Magnolia about sixty yards north of the depot, and only a few feet from the railway track in that town, and was used for loading cotton. The railroad company had been receiving freight from it, and had been issuing bills of lading for cotton placed upon it for shipment, before the fire occurred. On the evening of the 31st of March, and on the morning of the first of April 1857, the Southwestern Commercial Company placed forty-six bales of its cotton on this platform for shipment, which cotton was insured by the Fire Association. The Commercial Company, desiring to ship it to some place east of the Mississippi river, applied, on the 30th or 31st of March, to defendant's agent at Magnolia for a bill of lading by which the defendant would undertake to ship it as desired and the agent declined to give such a bill of lading, saying that he had no rates to such a place. The charges which had been fixed for shipping cotton to eastern cities and towns were cancelled a day or two before, and the defendant's agent had been notified and instructed to ask for special rates before making shipments to the east. He telegraphed and asked for instructions as to the terms upon which the cotton could be shipped to its destination. While waiting for the instructions, the said locomotive, emitting showers of sparks, an unusual quantity, on account of its defective condition, passed the cotton on the first day of April, 1887 about 2 o'clock in the afternoon. Fire was communicated to the cotton by the sparks falling on it, and about twenty-six of the bales were destroyed, and the remainder were more or less damaged, by the fire. The damage was $ 1493.79, which was paid by the Fire Association. The Commercial Company, in consideration of the payment, then transferred and assigned, by an instrument in writing duly executed by it, to the Fire Association all the claim or right it had to recover damages on account of the fire.

The evidence as to the cause of the fire was conflicting. There was evidence tending to prove that the locomotive was not emitting sparks a short time before and at the time it passed the cotton, and that the fire was burning the cotton before the locomotive reached the platform. There was no evidence that either of the plaintiffs had notice of the defective condition of the locomotive before the fire occurred.

The certificate of the Secretary of State, bearing date the 30th of August, 1888, was read as evidence. He certified in the certificate that neither the Fire Association nor the Commercial Company had before, on or since, the 4th day of April, 1888, filed in his office a certificate designating a citizen of this State as its agent, upon whom service of process might be made, and stating its principal place or business in the State of Arkansas.

When the testimony was closed, the further progress of the trial was postponed until the morning following. On the next morning before the jury were instructed, the defendant's counsel announced to the court that since the adjournment they had discovered other evidence material to the defendant, of which they did not previously know, and could not have known by proper diligence, and that the witnesses were present in court, and that they expected to prove by them that the fire occurred in the absence of the train, and before it reached the platform, or was sufficiently near to communicate fire to the cotton; and asked that they be permitted to prove these facts by the witnesses; and the court refused to allow them to testify.

At the request of the plaintiffs and over the objection of the defendant and after the close of the evidence, the court, among others, gave to the jury the following instruction: "The jury are instructed if they find from the evidence that the plaintiff, the Fire Association of Philadelphia, did insure the plaintiff, the Southwestern Commercial Company, in the sum of three thousand dollars, against the loss or damage by fire on certain cotton, described in the policy of insurance No. 764,308, and that said cotton or any portion of it was destroyed or damaged by fire, wholly under the terms and condition of said policy, and the said Fire Association became liable to pay and did pay said Commercial Company the sum of one thousand four hundred and ninety-three dollars and seventy-nine cents, and that, in consideration of said payment and prior to the institution of the suit, the said Commercial Company did assign, set over and transfer to said Fire Association all the rights, claims and interest and demand which said company had against the St. Louis, Arkansas and Texas Railway Company, or any person, party or corporation who may be liable for the burning or destruction of said cotton, then is said association subrogated to all the rights of said company under said policy; and if you further find from the evidence that any portion of said cotton was damaged or destroyed by fire escaping from defendant's engine, and that this was caused by the negligence of defendant, then your verdict may be for the plaintiff, the Fire Association of Philadelphia."

The defendant asked and the court refused to instruct the jury substantially as follows: That, if the plaintiffs, the Fire Association and the Commercial Company transacted business in the State of Arkansas prior to and on the fourth day of April, 1887, and after that date, it devolved on them to show by a preponderance of the testimony that they and each of them did, on or within ninety days after the 4th day of April, 1887, file in the office of the Secretary of the State of Arkansas a certificate under the hand of its president and the seal of the corporation, designating a citizen of the State of Arkansas as an agent of the...