St. Louis-San Francisco Railway Co. v. Allison

• Decision Date: 09 April 1923
• Docket Number: 288
• Citation: 250 S.W. 24,158 Ark. 209
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. ALLISON
• Court: Arkansas Supreme Court

250 S.W. 24

158 Ark. 209

ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. ALLISON

No. 288

Supreme Court of Arkansas

April 9, 1923

Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge; affirmed.

Judgment affirmed.

W F. Evans, and Warner, Hardin & Warner, for appellant.

Notwithstanding shipper consigned shipment to himself, or rather his company the invoice showed to whom it had been sold, and it was not intended to be a shipper's order shipment, the lumber being sold on credit and no draft attached to the bill of lading, and the title passed to the purchaser, the Lang-Body Company, upon delivery to the carrier at Garvin, Oklahoma and plaintiff cannot maintain action for failure to deliver. 121 Ark. 284; 115 Ark. 221; 112 Ark. 165; 111 Ark. 521; 105 Ark. 53. Moreover, the bill of lading was sent to the Lang-Body Company, the purchaser, and amounted to delivery, and the title passed. 120 Ark. 491; 74 Ark. 482. Court erred in refusing to direct a verdict for defendant. Court erred also in giving instruction numbered 2, requested by plaintiff, and in refusing to give defendant's requested instruction numbered 2. The court was requested by this instruction 2 to submit to the jury the question of whether or not the sale was conditional, and instruction 1 ignored the issue entirely. 93 Ark. 564; 137 Ark. 530; 148 Ark. 132. The question of intent of the parties should have been submitted to the jury. 82 Ark. 86; 106 Ark. 571; 126 Ark. 369; 144 Ark. 278. No negligence of carrier in handling the shipment of lumber, and court erred in not giving its requested instruction 3.

A. A. McDonald, for appellee.

Case should be dismissed for failure to comply with Rule 9. The case of U. S. Express Co. v. Burdick, 121 Ark. 284, not in point. While the invoice shows "Sold to Lang-Body Co., Cleveland, Ohio, shipped to Allison Hardwood Lumber Co., West 106 St., Cleveland, Ohio," the bill of lading shows "Consigned Allison Hardwood Lumber Co., destination Cleveland, Ohio," showing that shipper was to control the shipment, and that it was sold to be delivered at destination. Not having been delivered, it was the property of plaintiff. 115 Ark. 221 and 120 Ark. 487 distinguished. Instruction No. 2 of appellant was properly refused, there being no evidence upon which it could be based. Instruction No. 1 was a correct declaration of the law. 1 Roberts, Federal Liabilities of Carriers, 572, par. 328; U. S. Compiled Statutes 1918, Compact Edition, par. 8604-A. A clear case of negligence was shown, but the failure to deliver was sufficient to show negligence.

W. F. Evans, Warner, Hardin & Warner, in reply.

Additional abstract filed, notwithstanding we think our abstract was a compliance with Rule 9. St. L. & S. F. Ry. Co., v. Newman, 105 Ark. 63, holds too much of record not to be copied.

OPINION

WOOD, J.

The appellee instituted this action against the appellant to recover the sum of $ 2,789.95 for the alleged failure of appellant to deliver a carload of ash lumber which the appellee alleged he shipped over appellant's line from Garvin, Oklahoma, on July 21, 1920, to be delivered to Lang-Body Company at West 106 Street, Cleveland, Ohio. The appellant denied all the material allegations of the complaint.

Allison testified that a carload of lumber was sold by the Bacon Lumber Company, a corporation of Cleveland, Ohio, the agent of the appellee, to the Lang-Body Company of Cleveland, Ohio. The sale was evidenced by a written order, that he shipped the carload of lumber on July 21, 1920. The lumber was consigned to the appellee at Cleveland, Ohio, and was described in the bill of lading as "one car of ash lumber," with a notation thereon following the description "W. 106 St. N. Y. C. delivery." In the next day or two Allison mailed the bill of lading to the Lang-Body Company, and on the same day he billed out another car, which was delivered within three weeks, while the car is controversy was never delivered. The invoice price of the lumber, $ 2,789.95, was its fair market price. The freight and war tax amounted to $ 227.96. The witness then testified as to the efforts he made, after ascertaining the car had not been delivered, to have the same delivered to the Lang-Body Company. He wrote to the Lang-Body Company and the Bacon Lumber Company, requesting them to get in touch with the railroad company and have the car delivered. He also wrote the agent of the New York Central Railroad Company requesting the delivery of the car. He was advised on February 8, 1921, that the car was in storage at Cleveland, Ohio. He also testified that he requested the appellant to trace the car something like 30 or 60 days after the car was shipped.

C. D. Mowen, who was agent of the traffic bureau for the cities of Van Buren and Fort Smith, testified that he was familiar with the schedules and time necessary to ship freights to different points, and that the time reasonably necessary to carry the car from Garvin, Oklahoma, to Cleveland, Ohio, should not exceed nine days.

There was testimony on behalf of the appellee tending to show the efforts put forth by the Bacon Lumber Company and also the Lang-Body Company, after the car failed to reach its destination within a reasonable time, to locate and have the same delivered. It was shown by the freight agent of the New York Central at Cleveland, Ohio, that that road did not handle the car in controversy. It received a wire from the appellee as early as August 20, 1920, advising that the car in controversy should go to the Lang-Body Company. Lang testified, among other things, that the Lang-Body Company, after receiving the bill of lading for the car on August 3, 1920, made demand upon the railroad companies for the delivery of the car in controversy, and the same was not delivered, and thereafter it endeavored several times to have the railroad companies trace the car as late as Nov. 18, 1920, which they promised to do, but the car was never located.

There was testimony in the record showing that as late as January 24, 1921, the appellee was endeavoring to have the car located. The other testimony relates to the efforts that the appellee put forth to have the car of lumber sold after ascertaining that it was in storage in Cleveland. These efforts failed, for, as one of the witnesses testified, it was found that the car was not worth the freight, cartage and storage charges. It was shown by the testimony that the "NYC delivery" meant "New York Central delivery." It was shown on the part of the appellant that the car in controversy was received by the General Storage Company in Cleveland, Ohio, on October 5, 1920, for account of the Big Four Railroad Company. Notices were sent to the appellee at Cleveland and also at Garvin, Oklahoma, and no communication was received from the appellee pertaining to the car. The car was sold on May 20, 1921, at a total loss to the storage company amounting to $ 196.25.

One of the witnesses for the appellant testified that he was the disposition clerk of the C. C. C. & St. L. Ry. Co. at Linndale, Ohio, in September, 1920, and that the car in controversy arrived at Linndale September 13, 1920, consigned to the appellee, and carded "Hold for disposition on arrival account. Consignee unknown." Post-card notice of the arrival of the car was sent to the appellee. The car was at the Linndale yards from September 14 until September 29, and was reported daily.

Another witness for the appellant testified that he was the freight agent of C. C. C. & St. L. Ry. Co. at Cleveland, Ohio, and was familiar with the tracks serving the Lang-Body Company at Cleveland. It was on property owned by that company, and was reached through a New York Central industrial track about a mile long, which served a number of industries south of W. 106th Street. These industrial companies were served through the lead track by private sidings. The Lang-Body Company was one of them. When cars are consigned to it, they are placed on a private track of that company. Cars could not be placed on the Lang-Body Company's track or any other private track on the New York Central unless consigned to a firm served by those particular tracks. There is no team track on the New York Central known as W. 106th Street. The car in controversy was received at Linndale yard, which was the outer yard for Cleveland station of the Big Four, on September 13, 1920. The waybill on the car showed that it was consigned to the appellee. A postal notice, as well as a letter of September 17, was sent to the consignee asking for disposition. On September 23 report was made showing the car on hand, undelivered. The car was then put in general storage, and the appellee was notified by letter of September 27 of that fact. These witnesses testified that they had no knowledge of any inquiries from the Lang-Body Company, or the Bacon or Allison companies, regarding the car while it was held at Linndale.

In rebuttal, Allison testified that he shipped another car of lumber from Garvin, Oklahoma, on the same date, consigned to the same party in the same way as the car in question, and that this car had been delivered within three weeks.

Among other instructions the court, at the request of the appellee, gave the following:

"If you find from a preponderance of the testimony that the defendant railroad company accepted from the plaintiff the car of ash lumber in controversy, at its station at...