St. Louis Southwestern Railway Company v. Phoenix Cotton Oil Company

• Decision Date: 11 January 1909
• Citation: 115 S.W. 393,88 Ark. 594
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. PHOENIX COTTON OIL COMPANY
• Court: Arkansas Supreme Court

115 S.W. 393

88 Ark. 594

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. PHOENIX COTTON OIL COMPANY

Supreme Court of Arkansas

January 11, 1909

Appeal from Greene Circuit Court; Frank Smith, Judge; affirmed.

Judgment affirmed.

S. H West and J. C. Hawthorne, for appellant.

1. A carrier is not liable in damages for failure to ship promptly goods tendered to it for shipment, where there is an unavoidable shortage of cars resulting from an unforeseen and unexpected accumulation of business along its line. 70 Ark 357; Id. 59; 61 Ark. 560; 43 L.R.A. 225 and notes.

2. In this case the cotton was damaged when received.

3. Under the stipulation in the contracts providing against liability if the cotton was injured from moisture, decay or dirt, appellee is not entitled to recover. 39 Ark. 523; 40 Ark. 375; 44 Ark. 208; 50 Ark. 397; 67 Ark. 407.

4. Because of failure to give written notice within ninety days of its claim, stating the nature and extent of the damages appellee ought not to recover.

Johnson & Burr, for appellee.

1. This action is not based upon a failure to furnish cars, but upon delay in shipment. Cases cited by appellant do not apply. When goods are offered for shipment, and at the time conditions exist that will prevent the carrier's delivering them within a reasonable time, the latter may refuse to accept them for shipment; but if it accepts them without informing the shipper of the conditions and that prompt delivery can not be made, such acceptance is tantamount to an agreement to deliver within a reasonable time, except for subsequent excusing cause. 89 S.W. (Mo.), 908-10; 79 Mo. 296.

2. There is no evidence whatever that the cotton was damaged when received by the railway company.

3. Contracts limiting the liabilities imposed on carriers by law are void unless based upon a consideration. 73 Ark. 112; 112 S.W. (Ark.), 742. No reduced rate nor other consideration is shown, nor any opportunity offered to appellee to contract for unrestricted transportation. 81 Ark. 469; 57 Ark. 112.

OPINION

HILL, C. J.

The Phoenix Cotton Oil Company of Memphis, Tenn., purchased cotton at Arkansas points and shipped it to Memphis over the line of the St. Louis Southwestern Railway Company. On November 27, 1906, one bale was shipped from Marmaduke; on December 14, 1906, five bales were shipped from the same place; on December 17, 1906, one bale was shipped from Paragould; on December 18, 1906, two bales were shipped from Rector; and on December 29, 1906, seven bales were shipped from Marmaduke. These sixteen bales were delivered to the Oil Company in Memphis as follows: One bale on January 2, 1907; three on January 8, 1907; one on January 10, 1907; four on January 14, 1907, and seven on January 17, 1907.

The Oil Company sued for $ 347.34 damages to the cotton, incurred on account of the delay in the shipments, and recovered the amount sued for; and the railroad company has appealed.

It is admitted that the proof shows the cotton was damaged to the extent sued for when it was delivered in Memphis, but appellant seeks to avoid liability upon four grounds, which will be discussed in the order presented:

I. It is contended that the railroad company was unable to ship promptly on account of shortage of cars, resulting from an unexpected and unforeseen accumulation of business on its line, and that it did ship as promptly as possible.

The evidence of the railroad trainmaster is that in November and December, 1906, the company, although equipped with more freight cars per mile than any other company in the State was unable to move its freight promptly on account of the freight being chiefly sent beyond its line, and...