St. Louis, I. M. & S. R. Co. v. Wynne Hoop & Cooperage Co.

• Decision Date: 07 January 1907
• Citation: 99 S.W. 375
• Parties: ST. LOUIS, I. M. & S. R. CO. v. WYNNE HOOP & COOPERAGE CO.
• Court: Arkansas Supreme Court

Page 375

99 S.W. 375

ST. LOUIS, I. M. & S. R. CO. v. WYNNE HOOP & COOPERAGE CO.

Supreme Court of Arkansas.

January 7, 1907.

Appeal from Circuit Court, Cross County; Allen Hughes, Judge.

Action by the Wynne Hoop & Cooperage Company against the St. Louis, Iron Mountain & Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint, after alleging the incorporation of plaintiff, is as follows: "That the plaintiff was owner of a lot of elm saw logs placed along defendant's tracks at Crawfordsville, Ark., during the months of September, October, November, and December, 1903, for shipment to its sawmill, located at Wynne, Cross county, Ark.; that during said months plaintiff had made often and repeated demands of defendant for cars upon which to load and ship out logs; that it received only an occasional car, which it used as best it could; that it made repeated demands for cars during the months of February, March, and April, 1904, but defendant company neglected and carelessly refused to furnish a sufficient number of cars, and negligently permitted 312,000 elm logs and timber of the value of $6,377.60 to remain alongside its track at Crawfordsville from January 1, 1904, to May 1, 1904, a period of four months; that by reason of defendant's refusal to furnish said cars said logs and timber deteriorated to the amount of 90 per cent. of its value, whereby plaintiff was damaged in the sum of $6,377.60, for which it prayed judgment."

Appellant, defendant below, moved to make this complaint more definite and certain as follows.: (1) By stating the amount or quantity and value of the logs named placed along defendant's track at Crawfordsville, Ark., during the months of September, October, November, and December, 1903, for shipment, and to give an itemized and detailed statement of such logs, where and the time when placed. (2) By stating the particular days or time when plaintiff made orders for cars. Whether said demands were in writing or otherwise, and, if so, by exhibiting copies of said written demands; and, if verbal, by stating the time when, where, and upon whom the demands were made, and the number and kinds of cars called for, and names of the agents of the railway company upon whom demands were made. (3) By stating the date and time when cars were received, and the number thereof. (4) By stating the number and capacity of cars demanded, and the number and capacity of cars received from defendant. (5) By stating specifically the terms of the contract between plaintiff and defendant, if any, as to furnishing cars for shipment of logs during the time complained of.

In response to this appellee filed the following: "(1) In response to paragraph No. 1 of said motion, plaintiff says that it placed more than 312,000 feet of logs along the side of defendant's track at Crawfordsville from September 1 to December 31, 1903, but in this cause only complains of the failure of defendant to transport said 312,000 feet. Plaintiff cannot give or furnish a more detailed or itemized statement of said logs or when so placed than to say that they were being hauled and placed in said position almost daily. (2) In response to paragraph 2 of said motion, plaintiff says demand was made upon defendant almost daily for cars upon which to ship said logs, that one or perhaps more of said demands was in writing, and that the original of any such written demands was delivered to defendant, and, as plaintiff believes, is now in its possession, and plaintiff has no copies or copy thereof. One of said written demands was made on or about November 1, 1903, and was for one car daily until all of said logs were shipped. In said demand plaintiff did not ask for or demand any particular kind of car, but signified its willingness to receive or accept any kind of car upon which logs could be shipped, and offered to receive them at any time or in any numbers. (3) Plaintiff cannot now state the date or time when it received cars from defendant for the shipment of such logs or lumber, but says defendant has a complete record of the time and place when said cars were offered and placed and used. (4) In response to paragraph 4 of said motion, plaintiff says that it believes that about 78 cars of usual and average capacity would have been required to ship said logs, and that long after said demands for cars were made, and long after the expiration of a reasonable time after said demands, defendant did furnish cars in about said numbers plaintiff believes, but cannot state the capacity thereof. (5) In response to paragraph 5 of said motion, plaintiff says that in March, 1903, defendant specifically agreed to ship all of said logs to Wynne on or before June 1st of said year, but failed so to do until August of said year, but at other and many times defendant promised to furnish cars for said shipments, but plaintiff cannot give dates of said many and repeated and violated promises." Plaintiff further states that all the information sought by said motion is in possession of said defendant, and most thereof is a matter of record in the offices of defendant.

Appellant renewed its motion to make more definite and certain. The motion was overruled and exceptions saved. Appellant then demurred to the complaint. The demurrer was overruled and appellant saved exceptions to the ruling. Appellant then answered as follows: (1) It denied each and every allegation in the complaint specifically, and especially ownership of the logs. (2) It denied that any loss or detriment in value of any timber and logs was the result of any negligent act or default on the part of the defendant railway company, or that it was in any manner the proximate cause of any such loss or deterioration. (3) It charged that, if there was any such loss or deterioration in value of such logs or timber, same was caused and contributed to by the carelessness and neglect of the plaintiffs, its servants and employés, together with other persons with whom plaintiff had contracted in regard to furnishing and disposition of said timber and logs.

By an amended answer defendant said that, if plaintiff suffered any damage, loss, or deterioration in value of its timber and logs, it was not occasioned by any neglect or failure on defendant's part, but that it did all in its power to furnish cars without discrimination as to its customers or places, and defendant furnished all cars as fast as possible without any discrimination. During the trial, on the cross-examination of witness Eldridge, secretary of plaintiff's company, the following contract was read to the jury: "Wynne Hoop & Cooperage Company, Wynne, Ark., Sept. 21, 1903. This is to certify that we, Dolph Smith and ______ of Crawfordsville, Ark., agree to let the Wynne Hoop and Cooperage Company of Wynne, Arkansas, have all of the timber controlled by us and further agree to haul same and load on board cars within fifty miles of Wynne, Ark., for the sum of $10 per thousand, said timber to be hauled as fast as possible and said timber being good elm, and further agree not to sell any elm timber to anyone else before the 1st of January, 1904. The Wynne Hoop & Cooperage Company hereby agree to furnish the sum of $600 to the said Dolph Smith and J. A. Thomas, in advance, on this said timber and to retain $100 per week from their payroll thereafter, until said sum has been paid. $600.00. [Signed] Wynne Hoop & Cooperage Co., by Geo. W. Eldridge, Secy. [Signed] Dolph Smith." Witnesses, over the objection of appellant, were permitted to testify that under the contract the title to the logs vested in the Wynne Hoop & Cooperage Company "when it scaled them and put its stamp on them on the ground, at the spur." Witnesses, over objection of appellant, were also permitted to testify that it was a uniform custom in logging localities and the locality of Wynne and Crawfordsville that the title to the logs passed to the purchaser thereof when they were "taken up and stamped and the advancement made, notwithstanding the fact that in the contract the sellers were to load them." There was testimony to the effect that appellee advanced $7 per 1,000 upon these logs when they were delivered on the ground at the side track. Appellant preserved its exceptions to all the above testimony.

The testimony of the secretary of the appellee is as follows: "That the plaintiff [appellee] entered into the contract [set out supra] with Smith & Thomas; that under the contract Smith & Thomas delivered the logs at Crawfordsville; that the logs were the property of the plaintiff; that repeated demands were made both at Crawfordsville and Wynne for cars. I demanded cars almost daily from September 1, 1903, to July 21, 1904. There were about 312,000 feet of logs on the ground at Crawfordsville May 1, 1904. There were ample facilities for loading the logs at Crawfordsville and unloading them at Wynne. The railway company did not require payment of freight in advance. Logs were placed on the side track from about September 1, 1903, to January, 1904. We hauled in September, October, November, December, and some in January. The damaged logs began showing up about the 1st of March, and we afterwards found they were really worthless. We could not ascertain their condition at Crawfordsville, but had to saw them first. There was but little timber that would make marketable hoops. The logs were damaged 80 per cent. by reason of their not being shipped at the proper time. Mr. King is superintendent of transportation of the defendant, and has his office at Little Rock. I met him at Wynne, and he asked me for information, and I told him that the logs would have to be delivered at our mill rapidly then, and this was the 1st of April. I told him why, and he promised to move them by the first of the month. He did not do so. From May 1st to July 1st we received and shipped 78 cars with 312,000 feet. I did not personally demand cars at Crawfordsville, but...