St. Louis-San Francisco R. Co. v. Lee Wilson & Co.
| Decision Date | 08 December 1947 |
| Docket Number | No. 4-8360.,4-8360. |
| Citation | 206 S.W.2d 175 |
| Parties | ST. LOUIS-SAN FRANCISCO R. CO. et al. v. LEE WILSON & CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Mississippi County, Chickasawba District; Charles W. Light, Judge.
Action by Lee Wilson & Company against the St. Louis-San Francisco Railroad Company and Frank A. Thompson, trustee, to recover for damages by fire to a carload of alfalfa meal. From a judgment in favor of the plaintiff, the defendants appeal, and the plaintiff cross-appeals.
Judgment affirmed on direct appeal.
E. G. Nahler, of St. Louis, Mo., and E. L. Westbrooke, Jr., and E. L. Westbrooke, both of Jonesboro, for appellant.
Holland & Taylor, of Blytheville, for appellee.
Appellee, Lee Wilson and Co., was plaintiff in the circuit court in an action against appellant, St. Louis-San Francisco Railroad Company, for damages by fire to a carload of alfalfa meal. Plaintiff alleged that on June 20, 1946, it delivered 113 bags of alfalfa meal to defendant for shipment at Armorel, Arkansas; that the meal was accepted by defendant, placed in a boxcar and bill of lading issued and signed by defendant's regularly appointed agent, E. M. Regenold. It was further alleged that the meal was thereafter destroyed by fire caused by a spark from defendant's engine and was not delivered as directed by the bill of lading. There was a prayer for judgment for $351.71, the alleged value of the meal destroyed, and for interest and costs.
Defendant answered denying the allegations of the complaint. At the conclusion of plaintiff's testimony, defendant moved that the court take the case from the jury and find for defendant on the ground that the proof failed to sustain the allegations of the complaint.
The trial court held the proof insufficient to sustain that part of the complaint which alleged the fire was caused by the locomotive of defendant and withdrew that issue from the jury's consideration, but overruled that part of the motion relating to defendant's liability for the loss under the shipping contract. After defendant introduced its evidence on the latter issue, each party requested an instructed verdict in its favor. Thereupon, the trial court found for plaintiff in the sum of $351.71, which the parties agreed to be the value of the alfalfa meal destroyed. Defendant has appealed. Plaintiff has cross-appealed from the action of the trial court in withdrawing from the jury the consideration of the question whether defendant's locomotive caused the fire.
Plaintiff conducts extensive farming operations in the vicinity of Armorel, Arkansas where it maintains a warehouse from which it makes carlot shipments of cotton, cottonseed, alfalfa meal and soy beans. Defendant does not maintain a freight station at Armorel but freight service is provided over its line from Blytheville, Arkansas, trips being made every other day by the Blytheville switching crew. Prior to June 19, 1946, defendant's crew placed two cars on the loading track which runs alongside plaintiff's warehouse. On June 19th the loading of one car had been completed and the other was loaded in the west end with alfalfa meal. The half loaded car was switched to the main track where it was attached to an empty car and returned to the siding for further loading. The loading operation was then completed and the car was sealed and a bill of lading issued by E. M. Regenold, as agent for the defendant.
A fire was discovered in the west end of the car on the morning of June 20th and 113 bags of meal were destroyed. Regenold notified defendant of the fire and the burned meal was replaced by other meal and the car resealed with a new serial number which was noted on the bill of lading. On the same date the reloaded car was hauled to its destination by the railway company.
E. M. Regenold is plaintiff's manager at Armorel. Several years prior to the fire, defendant gave Regenold written authority to sign bills of lading for the railway company on shipments of cotton and cottonseed made by plaintiff. This authority was renewed from year to year. Regenold testified that for five years, or longer, he had signed bills of lading, not only for the shipment of cotton and cottonseed, but also for alfalfa meal and soy beans, and that defendant had accepted these shipments without objection until after the fire occurred.
There was some dispute of this testimony by defendant's agent at Blytheville, Arkansas who testified that he had made protests to Mr. Vance, plaintiff's office man at Armorel, prior to the fire. A letter from the Blytheville agent to Regenold, written several months after the fire was introduced in evidence. This letter discloses that Regenold continued to sign bills of lading for shipments of alfalfa meal and soy beans after the fire, and he was asked to discontinue this practice. The Blytheville agent also testified that, about two years prior to the writing of this letter, a similar letter had been written to Vance, but no such letter was introduced in evidence.
On the direct appeal it is first contended by defendant that there was no delivery of the car of alfalfa meal to it prior to the fire damage. Both parties agree that the rule to be applied in determining this question is stated in W. F. Bogart & Co. v. Wade, Receiver, 132 Ark. 49, 200 S.W. 148, as follows:
Defendant relies on the Bogart case, supra, for reversal here, but the facts are distinguishable from those in the instant case. In that case plaintiff placed the cotton on the carrier's platform where it remained 8 or 10 days without shipping orders being given before it was damaged by fire. The cotton was not loaded and as stated by the court: "The only issue in the case was whether or not the cotton was placed on the platform for immediate shipment and received by the railroad company for that purpose." The evidence on that issue being conflicting, it was held that error was not committed by the trial court in refusing to give a peremptory instruction in favor of the plaintiff.
The facts in the instant case are similar to those in Pine Bluff & Arkansas River Ry. Co. v. McKenzie, supra, where the commodity was burned...
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