St. Louis, Iron Mountain & Southern Railway Co. v. Laser Grain Co.

• Decision Date: 12 July 1915
• Docket Number: 119
• Citation: 179 S.W. 189,120 Ark. 119
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LASER GRAIN COMPANY
• Court: Arkansas Supreme Court

179 S.W. 189

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LASER GRAIN COMPANY

120 Ark. 119

No. 119

Supreme Court of Arkansas

July 12, 1915

Appeal from Johnson Circuit Court; Hugh Basham, Judge; modified and affirmed.

STATEMENT BY THE COURT.

This suit was brought by the Laser Grain Company to recover damages alleged to have arisen from the negligence of the railway company in the shipment of twenty-seven car loads of peaches from designated points in this State to various points in other States.

Some of the peaches were loaded in cars used for shipment of meat the railway company furnishing them for the use.

It was alleged that the peaches were damaged, occasioning the loss on account of unreasonable delay in transportation, failure to furnish proper cars and failure to properly ice the shipments in transit. Each of the twenty-seven counts of the complaint specified the damage of the shipment of a particular car, designating the different amounts claimed therefor.

The railway company answered, denying the allegations of the complaint, and pleaded specially two of the provisions of the contract of shipment, stipulating that the amount of any loss or damage for which it was liable "shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges if prepaid) at the place and time of shipment under this bill of lading," etc., and that claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin of the shipment, within four months after delivery of the property etc., and, unless so made, the carriers shall not be liable."

The cases were tried before the court without a jury and judgment rendered upon each count of the complaint in appellee's favor, except No. 23.

It appears from the testimony that the peaches were loaded into the cars in good condition, some of them were delayed in shipment and all arrived at destination more or less damaged as a result of the unusual delay in transit and the failure to properly refrigerate. The testimony also tended to show the amount of such damage. Laser stated that the peaches in the different cars had been sold f. o. b. the point of shipment at a certain price per bushel or crate, except certain cars designated by him to be sold on commission, also the amount that was realized on the sale of the shipment at the point of destination, and the amount of the freight icing and other charges claimed as damages.

There was other testimony relative to some of these amounts.

He was allowed to state, over appellant's objection, that he knew the market price of the peaches in Boston the destination to which three of the shipments were consigned on the date of the sale therefrom, having read the market quotations and price lists, although he had no such lists from which to testify.

The court refused to declare the law to be that the burden of proof was upon plaintiff to show that a written notice of claim for damages was given within four months to the agent of the defendant at the point of origin of shipment and also that such a provision requiring written notice of the claim for damages was valid and unless given would defeat a recovery.

The court also refused to find as a fact that the railroad had exercised all necessary diligence in supplying refrigerator cars for the shipment of peaches from the State in the year 1912; that on account of the unusual demand for such cars during the peach shipping season it was forced to substitute what it called "meat cars" as they were the only one available, to supply the demand and that the damage to the peaches shipped therein were caused from the bunkers not being sufficiently large to hold enough ice to keep them properly refrigerated.

The court found in favor of plaintiff on twenty-six of the twenty-seven counts of the complaint for damages to that number of cars of peaches, designating the amount on each count, and rendered judgment accordingly, from which this appeal is prosecuted.

Judgment modified.

Thos. B. Pryor, for appellant.

1. The finding of the court in each of the counts of the complaint is not supported by the evidence. It is clear from the evidence in this case that the rule recognized by this court, towit, that the measure of damages for delay in transporting goods is the difference between the market price of the goods at the time and place when and where they should have been delivered, and their value when they were delivered, was not followed by the lower court. 174 S.W. 1167, and cases cited. There was no competent evidence of the market value of the goods at the places of delivery. Laser's testimony as to the market value from his memory of the market reports was mere hearsay and inadmissible. The market reports themselves, if admissible at all, were the best evidence. 82 Ark. 358. His testimony was not admissible on the ground that he was an expert on market values of peaches at Boston and other points where they were sold, because no foundation was laid for such testimony by qualifying himself as an expert.

Moreover, these were interstate shipments, and come within the provisions of the uniform bill of lading adopted by the Interstate Commerce Commission by its order No. 787 of June 27, 1908, which provisions were pleaded in the answer of appellant as one of the grounds of defense against appellee's alleged claim for loss and damage. 21 I. C. C. Rep. 8; 147 P. 664; 73 Ark. 112.

2. The court erred in refusing to find the fact to be that the plaintiff had failed to comply with the provision of the bill of lading with reference to presenting its claim within four months. The uniform bill of lading adopted by the Interstate Commerce Commission provides that "claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or, in case of failure to make delivery, within four months after reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable." All these being interstate shipments, the same are governed by the Interstate Commerce Act. 115 Ark. 20. The uniform bill of lading, supra, contains no provision that a carrier may waive a compliance with it, and the railway company could not, if it would, waive the plain provisions of the bill of lading above stated. A. J. Phillips Company v. Grand Trunk Western Railway Company, opinion U. S. S.Ct. March 15, 1915; 59 U.S. L.Ed. 444.

3. The court erred in refusing to declare the fact that there was an unusual and unprecedented demand for refrigerator cars in 1912. The uncontroverted evidence on this point establishes the fact that there was never before such a demand for refrigerator cars in which to ship peaches; that while in 1907, the next highest year, there were 472 cars shipped from Arkansas, there were shipped in 1912, 3,194 cars, and that in the years between these two the annual shipment did not reach 400 cars.

The law does not require a common carrier to foresee or anticipate an unprecedented and unusual demand for cars. 77 Ark. 362.

4. The judgment in each of the cases was excessive.

A. W. Covington and Sellers & Sellers, for appellee.

1. Since the appellant's abstract fails to state that it contains all of the testimony, the judgment should be affirmed for that reason, rather than that the court should assume the burden of exploring the transcript for information as to what the testimony was. 90 Ark. 335. Also, since the bill of exceptions fails to show by inference or otherwise, that it contains all the declarations of law given and refused by the court, appellant's objections to the giving or refusal of certain declarations named in his argument, can not be considered. 59 Ark. 179; 36 Ark. 495; 60 Ark. 258, 102 Ark. 96; 28 Ark. 549; 35 Ark. 224; 46 Ark. 209, 78 Ark. 378; 27 Ark. 592; 103 Ark. 430. And the same reason applies why appellant's objections to the court's findings of facts should not be considered.

2. The four months' limitation of liability in the contract was purely a matter of defense to be pleaded by the appellant, and having pleaded it the burden rested upon the appellant to prove the failure of appellee to give the notice therein provided for. 46 Ark. 244; 31 Ark. 103; 12 Am. St. Rep. 393; 91 S.W. 38; 17 Mass. 188; 87 Id. 25; 31 N.W. 140; 71 N.C. 531.

3. Appellant's objections to certain testimony as incompetent can not be considered. Where a court tries a case without a jury, the presumption prevails that it based its findings upon competent testimony. 76 Ark. 255; 2 Enc. Pl. & Pr. 567; 90 N.W. 940; 88 Am. St. Rep. 849; 72 N.W. 1089, 3 Cyc. 362; 42 Ark. 314; 77 Ark. 261; 86 Ark. 316.

4. The so-called uniform bill of lading relied upon by appellant does not appear, so far as the record shows, ever to have been adopted by the Interstate Commerce Commission, and since it is in plain violation of section 20 of the Carmack amendment to the interstate commerce law, it is improbable that the Commerce Commission had anything to do with its adoption. See 210 F. 364. But, in any event, the provisions of the bill of lading may be waived. The requirement that the claim shall be presented within four months, is intended for the benefit of the carrier, and the latter can waive it. 72 P. 652; 63 Ark. 331; 39 N.E. 273; 111 Ark. 229; 113 Ark. 248.

5. If the court had made a finding that there was an unusual and unprecedented demand for cars in 1912, such a finding would have been immaterial. It was the duty of appellant to meet unusual demands; and it would have furnished no defense for the court to have found that there was an...