St. Louis-San Francisco Railway Company v. A. B. Jones Company
| Citation | 260 S.W. 34,163 Ark. 429 |
| Decision Date | 31 March 1924 |
| Docket Number | 275 |
| Parties | ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. A. B. JONES COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Craighead Circuit Court, Jonesboro District; W. W Bandy, Judge; affirmed.
Judgment affirmed.
W F. Evans, W. J. Orr and E. L Westbrooke, for appellant.
Hawthorne, Hawthorne & Wheatley, for appellee.
If there was any error in instructing the jury as to the damages in transporting the substituted sugar, it was invited by appellant, and it cannot now complain. 132 Ark. 450; 139 Ark. 90; 141 Ark. 280; 142 Ark. 223; 143 Ark. 376; 150 Ark. 371. Objections not raised in the trial court will not be considered on appeal. 150 Ark. 12; 150 Ark. 258; 137 Ark. 495; 132 Ark. 511; 134 Ark. 136; 133 Ark. 206; 136 Ark. 272; 143 Ark. 376; 144 Ark. 227; 148 Ark. 456; 139 Ark. 143; 147 Ark. 292; 142 Ark. 159. The court will not reverse for harmless error, or where the undisputed proof shows the verdict is proper. 99 Ark. 226; 148 Ark. 654; 228 S.W. 388; 135 Ark. 602; 137 Ark. 387; 145 Ark. 111; 150 Ark. 307; 131 Ark. 547; 135 Ark. 440; 141 Ark. 310; 60 L. ed. 511. The evidence must be viewed in the light most favorable to the appellee. 143 Ark. 122; 142 Ark. 159; 147 Ark. 206. And the verdict must be upheld if supported by any legal evidence. 136 Ark. 84; 141 Ark. 88; 142 Ark. 159; 134 Ark. 300; 228 S.W. 388.
Appellee is a corporation operating wholesale grocery stores, with its principal place of business at Jonesboro, and branch stores at Mammoth Spring and other places in Eastern Arkansas. On August 6, 1920, it bought a carload of sugar from the Milligan Grocery Company, of Springfield, Missouri, which was billed out to shipper's order on that day, to be shipped to the store at Mammoth Spring. The bill of lading was attached to a draft and sent to the Bank of Jonesboro at Jonesboro, and this draft was presented to appellee and was paid by it on August 9, the car of sugar consisting of 400 bags weighing 100 pounds each.
After loading the car of sugar the consignor discovered that an inferior grade of sugar had been loaded into the car, and the railroad company was notified of that fact, and, without taking up the bill of lading, the railroad company permitted the consignor to unload the car and to load into the car sugar of the grade which appellee had ordered. The reloading of the car was completed on the morning of the 7th, and, while it is not definitely shown that the car was turned back to the railroad at that time, we think the jury might fairly have drawn that inference from the testimony.
There was never but one bill of lading, and the car moved under it, and was delivered to appellee at Mammoth Spring upon presentation of this bill of lading, it being the one which the shipper had attached to the draft.
The testimony does not show when the car left Springfield, but the testimony does show that it was not delivered at Mammoth Spring until August 18. The testimony also shows that the schedule time of a freight train from Springfield to Mammoth Spring is about 9 1/2 hours.
This sugar was bought just before the break in the market price of that commodity, but the price began to decline about the time of its purchase, and declined so rapidly thereafter that the market price had gone off after the car was loaded as much as four cents a pound by the time the car was delivered.
Suit was brought to recover the loss thus sustained on account of the delay in the shipment, and the jury fixed the loss at three cents per pound, and judgment was rendered accordingly, and this appeal is prosecuted to reverse that judgment.
Objection was offered to testimony showing the market price of sugar at Jonesboro, the ground of the objection being that the market price at Mammoth Spring, the place of delivery, was controlling on that issue. This is true, but no error was committed in admitting this testimony, because it was shown that the market price at Mammoth Spring was controlled by the price at Jonesboro. Arkansas Short Leaf Lbr. Co. v. McInturf, 134 Ark. 284, 203 S.W. 1047; Westbrook Grain & Milling Co. v. Johnson, 134 Ark. 300, 203 S.W. 1032 Batte Bros. v. Battle, 139 Ark. 302, 307, 213 S.W. 379; Moore v. Ziba Bennitt & Co., 147 Ark. 216, 227 S.W. 753.
Appellant asked an instruction, numbered 2, to the effect that a verdict should be directed in its favor because there was no evidence showing when the favor reloaded, was turned back to the company for shipment. It also asked instructions numbered 3, 4 and 5 to the effect that, if the bill of lading was issued for sugar of a different grade from that purchased, there could be no recovery on the bill of lading issued.
Instruction numbered 2 was properly refused because, as we have said, the jury might have drawn the inference from the testimony that the car was turned back to the shipper for the purpose only of correcting the mistake of loading the wrong sugar, and that the car was subject to the railroad's control as soon as this was done, and could have been moved as soon as the reloading was completed, which the testimony shows was done by noon of August 7.
Appellant insists that the other instructions should have been given on the authority of the Federal Bills of Lading Act, which went into effect January 1, 1917.
It may be conceded that, as this was an interstate shipment, this act of Congress would govern, in so far as its provisions are applicable to the points in issue, and it is the insistence of the railroad company that, under the provisions of this act, the company, if liable at all, is liable for the value of the sugar first loaded into the car as for a conversion of it by reason of its failure to deliver that sugar to the consignee, and is not liable for any depreciation in the value of the sugar delivered, because it was not covered by the bill of lading which it issued.
We think this is the real question in the case, but, under our view, no question is presented which requires a construction of the Federal statute to arrive at the proper answer thereto.
The bill of lading covered 400 bags of sugar, weighing 40,400 pounds, loaded in car P. & R. 2961, and this car, containing that quantity of sugar, was delivered to the consignee at Mammoth Spring--the grocery company becoming the consignee upon payment of the draft, which entitled it to the possession of the bill of lading. It was no concern of the railroad company whether the sugar shipped corresponded to the sugar ordered. Its duty was to deliver, without unnecessary or unreasonable delay, the sugar covered by the bill of lading. It is true the sugar first loaded was not shipped, but the consignor substituted...
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