St. Louis And San Francisco Railroad Company v. Pearce

• Decision Date: 15 April 1907
• Parties: ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY v. PEARCE
• Court: Arkansas Supreme Court

101 S.W. 760

82 Ark. 353

ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY v. PEARCE

Supreme Court of Arkansas

April 15, 1907

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

Reversed and remanded.

L. F Parker and B. R. Davidson, for appellant.

1. The first delay was caused by failure of machinery. Under the contract the company was not liable for this delay. 55 F 1003; 39 Ark. 148; 40 Id. 375; 52 Id. 26.

2. There are no allegations to impeach the contract, and no evidence introduced for that purpose. The contract was binding, and under it the measure of damages was the amount expended for feed and care of stock. 39 Ark. 523; 40 Id. 375; 52 Id. 26. There is no proof of negligence in operating the train. 39 Ark. 523; 40 Id. 375; 44 Id. 208; 50 Id 397-415; 34 Id. 383-389; 52 Id. 26-30. The testimony as to decline in market was illegal -- as was the testimony as to the time the train would arrive. 1 Elliott, Ev. § 208; 2 Best, Ev. § 472. It was error to admit evidence as to what the live stock agent at Pierce City said as to better service. 52 Ark. 78; 71 Id. 552-555; 78 Ark. 381.

3. The second instruction given was erroneous because: First. It left to the jury to say whether or not the stipulation in the contract that suit should be brought in six months was reasonable. That was matter of law for the court. 52 Ark. 406; 63 Id. 331-335; 73 Id. 205; 78 Ark. 574; 79 Ark. 172. Second. This stipulation was reasonable. 14 S.W. 913; 15 Id. 164; 30 Am. & Eng. R. Cas. 49; 67 Ark. 407. The parties had no right to waive this clause or modify the contract or extend the time limit. 24 S.W. 918; 15 Id. 568.

4. Under the contract the burden was on plaintiff to prove the cause of the death of the hogs. 50 Ark. 397-415; 34 Id. 383-389; 52 Id. 26-30; 5 Am. & Eng. Enc. of Law (2 Ed.), 471 and notes.

5. Notice should have been given of damages before the stock was sold or mingled with other stock. 63 Ark. 331-336; 67 Id. 407; 75 Id. 206; 1 Hutchinson on Car. § 442; 4 Elliott on Railroads, § 1412.

6. The argument of counsel was prejudicial. 81 Ark. 231; 61 Ark. 130; 70 Id. 179-184; 77 Id. 238.

J. A. Rice, for appellee.

1. No proper exceptions were saved, and objections to evidence on appeal that were not urged or different from those urged in the trial will not be considered. 86 S.W. 242; 82 Id. 927. No complaint was made as to the instructions given in the motion for new trial. A general exception to several instructions is not sufficient. 88 S.W. 966; 97 Id. 519; 23 Id. 735; 75 Ark. 181; 37 N.E. 283.

2. A failure to furnish cars upon reasonable demand will be excused only for some unusual, unprecedented and unforeseen condition of the traffic. This is not shown in this case. Kirby's Digest, §§ 1904, 6592-3; 69 Ark. 256.

3. If there is a contract limiting the carrier's liability, such limitation is matter of defense, and should be pleaded and proved. 63 Ark. 336; 69 Id. 256. A failure to so plead and prove is a waiver and abandonment of such defense, and relegates the carrier to its common-law rights and duties, and the burden is on the carrier. 86 S.W. 342, 932.

4. The contract was not plead as a defense and appellant can not be heard to say it was pleaded by appellee. 39 Ark. 438; 3 Cyc. pp. 242-4.

5. Exceptions not ruled on by the court are waived, and will not be considered on appeal. 62 S.W. 381; 74 Id. 434; 64 Id. 648; 69 Id. 826; 61 Id. 766.

OPINION

MCCULLOCH, J.

This is an action instituted by the plaintiffs, Bart Pearce and J. C. Puckett, to recover damages to live stock shipped over appellant's road to St. Louis.

The complaint contains two paragraphs, setting forth two separate causes of action: One for damages to a carload of hogs shipped on September 24, 1904, from Gravette, Ark., caused by negligence of the company in failing to transport the carload of hogs with due diligence; and the other for damages to a lot of cattle and hogs shipped November 16, 1904, from Centerton, Ark., caused by negligence of the company in failing to furnish cars promptly and in failing to transport the carloads of cattle and hogs with due diligence after they were shipped.

The shipments were made under a special contract restricting the liability of the carrier in consideration of reduced rates, and the several contracts or bills of lading are exhibited with the complaint. The damages are alleged to have been sustained by reason of some of the hogs dying and the shrinkage in weights and depreciation in the market prices during the delays. A verdict was returned in favor of the plaintiffs, and the defendant appealed, assigning various alleged errors of the court.

1. The contract contained the following, among other clauses: "That, as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims."

The evidence fails to show that the notice of damage was given within the time named, and the defendant asked instructions to the effect that if the jury found that the notice was not given within the stipulated time there would be no recovery for shrinkage in weight or price of the stock. The court refused to give the instruction, and no instructions on this subject were given.

This provision of the contract is reasonable and binding, and the instructions should have been given. Kansas & Ark. Valley Railroad Co. v. Ayers, 63 Ark. 331, 38 S.W. 515; St. Louis & San Francisco Railway Co. v. Hurst, 67 Ark. 407, 55 S.W. 215; 1 Hutchinson on Carriers, § 442, and cases cited.

The stock was unloaded and sold within the time stipulated for the giving of the notice, and it imposed no unreasonable terms upon the plaintiffs in requiring them to give notice within that time of their intention to claim damages.

The giving of the notice within the time named was, according to the stipulation, a condition precedent to right of recovery, and the burden of proof was therefore on the plaintiffs to show that they had given the notice. Inasmuch as this was not shown, the evidence was not sufficient to sustain the verdict.

2. The defendant requested the court to give the following instruction, which was refused:

"7. I charge you that where stock is shipped over two or more connecting lines, and the stock is found damaged at destination, the presumption is that the stock, if damaged at all by the carrier, was damaged by the last line handling the same, and in order to recover in this action it would devolve upon the plaintiffs to show that the defendant company was guilty of some negligent act or acts which caused the death of the hogs."

The instruction was properly refused. In an action against the initial carrier of two or more connecting carriers the burden of proof is upon the plaintiff to show that the damage occurred on that line, whereas, if the suit be against the last or delivering carrier, the burden is upon it to show that the damage was not done on its line. St. Louis So. W. Ry. Co. v. Birdwell, 72 Ark. 502, 82 S.W. 835; St. Louis, I. M. & So. Ry. Co. v. Coolidge, 73 Ark. 112, 83 S.W. 333.

But it is not correct to say that in a suit against the initial carrier there is any presumption as to the line on which the damage occurred.

The court told the jury in this case that the burden was on the plaintiff to show that the damage was caused by defendant's negligence. This was sufficient.

3. One of the plaintiffs was allowed, over defendant's objection, to testify from the market reports printed in a trade journal printed and published where the stock were sold as to the market price of hogs and cattle during the period of delay in the shipment. Standard price lists and market reports, shown to be in general circulation and relied on by the commercial world and by those engaged in the trade, are admissible as evidence of market values of articles of trade. 17 Cyc. p. 425; 3 Wigmore on Ev. § 1704; Sisson v. Cleveland & Toledo Ry. Co., 14 Mich. 489; Cleveland & T. R. Co. v. Perkins, 17 Mich. 296; Nash v. Classen, 163 Ill. 409, 45 N.E. 276; Whelan v. Lynch, 60 N.Y. 469; Harrison v. Glover, 72 N.Y. 451; Fairly v. Smith, 87 N.C. 367; Washington Ice Co. v. Webster, 68 Me. 449; Munshower v. State, 55 Md. 11.

It is argued that this testimony was inadmissible because the contract of shipment did not require the carrier to deliver the stock in time for any special market. This is true, but the...