St. Louis, Iron Mountain & Southern Railway Company. v. Burrow

• Decision Date: 01 February 1909
• Citation: 116 S.W. 198,89 Ark. 178
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. v. BURROW
• Court: Arkansas Supreme Court

116 S.W. 198

89 Ark. 178

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. v. BURROW

Supreme Court of Arkansas

February 1, 1909

Appeal from Pope Circuit Court; Hugh Basham, Judge; affirmed.

STATEMENT BY THE COURT.

This suit was brought against the railway company to recover for loss of cotton by fire after it had been delivered for shipment.

The answer of the railway company denies that the cotton was delivered to it, or that it agreed to transport it.

There was a verdict and judgment in favor of the plaintiffs for $ 2,411, and interest from June 20, 1905, at 6 per cent. until paid.

Judgment was accordingly entered, and the cause is here on appeal. The facts necessary to a proper understanding of the assignments of error are sufficiently stated in the opinion.

Judgment affirmed.

Thos B. Pryor and Lovick P. Miles, for appellant.

1. There never was a delivery to the carrier. 60 Ark. 338.

2. In the 1st instruction the court invaded the province of the jury, and there is no evidence to sustain the 5th. It was also error to refuse the instruction asked by defendant. 60 Ark. 338; Hutchinson on Carriers, § 125.

3. The testimony of Oates as to custom was not admissible. Hutchinson on Carriers, § 118.

4. No foundation was laid for the introduction of testimony as to the postal card.

Rose Hemingway, Cantrell & Loughborough, for appellee.

1. The evidence conclusively shows delivery to the carrier, and amply supports the verdict.

2. The admission of Oates' testimony was not prejudicial, as the proof was ample.

3. It was shown that the postal card was lost, thus laying proper foundation for parol testimony.

4. There was no invasion of the province of the jury, as the evidence shows that Burrow owned the cotton, which was covered by insurance. No evidence was offered to dispute it. 67 Ark. 154; 79 Id. 356.

5. It is immaterial whether a bill of lading is issued or not. The cotton was offered and placed in the carrier's care with its knowledge and consent, and nothing remained to be done by the shipper. 60 Ark. 388; 69 Id. 157; 75 Id. 102; 79 Id. 356.

OPINION

HART, J., [after stating the facts.]

The first assignment of error is that the court erred in giving instruction No. 5 to the jury. It reads as follows:

"If you find from the evidence that Burrow & Company tendered the cotton to defendant for immediate shipment and deposited the cotton on defendant's platform for loading into cars, and that defendant, through its agents assented to such delivery and received the cotton into its care and custody upon its platform in preparation to loading it into cars for transportation after it had been checked over and bills of lading had been issued for it, then the delivery of the cotton was complete, and it is immaterial whether or not defendant's agents had actually signed the bills of lading for the cotton; and defendant became liable as a common carrier to Burrow & Company for the cotton."

Counsel for appellant contends that there is not a scintilla of evidence upon which to base that part of the instruction that appellant "through its agent, assented to such delivery and received the cotton into its care and custody." The testimony on that point is substantially as follows:

"Burrrow & Company had bought from Bennitt & Company 474 bales of cotton at Russellville, Arkansas. About 200 bales of this cotton had been delivered to the railway company, and drafts had come in to Burrow & Company at Little Rock, Arkansas, for the purchase price with bills of lading attached. A member of the firm of Bennitt & Company was at Russellville making delivery of the cotton to the railway company for shipment. He marked it into grades, loaded it upon drays, and sent it to the railroad company's platform for shipment. He also sent blank bills of lading for the cotton deposited upon the railroad platform to be signed by the agent. The platform would hold about 200 bales. As some of the cotton was shipped out, other bales were placed in the vacant space. The agent would check the cotton and then sign the bills of lading. This process had been going on several days before the 70 bales in controversy were placed upon the platform. The agent had been notified that the 70 bales were on the platform, and the bills of lading for them had been handed to him to be signed. These 70 bales were placed upon the platform in the same way the other cotton had been delivered there. The railroad agent admitted that he had been notified that the 474 bales would be delivered for shipment as fast as it could be received; that as soon as a part of it was loaded into the cars, so that there was a vacant space on the platform, more bales would be placed there so that the vacant space was constantly kept filled."

The only reason the agent had not signed the bills of lading was because he had not time to...