The Farmers Grain and Mercantile Company v. The Union Pacific Railroad Company
| Decision Date | 12 October 1918 |
| Docket Number | 21,719 |
| Citation | 175 P. 599,103 Kan. 527 |
| Parties | THE FARMERS GRAIN AND MERCANTILE COMPANY, Appellee, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1918.
Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. SHIPPING CONTRACT--Recital in Bill of Lading--Not Conclusive. A recital in a bill of lading that a shipment covered thereby is made under a particular order for a car is evidence of the facts stated in the recital, but it is not conclusive evidence thereof and may be rebutted.
2. SAME--Delay in Furnishing Cars--"Exemplary Damages"--Instructions. In an action to recover the exemplary damages named in section 8423 of the General Statutes of 1915, it is error for the court to refuse to give an instruction that the plaintiff cannot recover if the shipments were to be a part of interstate commerce, where the evidence is not clear as to whether or not the shipments were to be made to points within or without the state.
3. SAME--"Exemplary Damages" as Prescribed by Statute. The exemplary damages named in section 8423 of the General Statutes of 1915 are not such damages as have been termed exemplary in actions in which it has been held that such damages cannot be recovered unless actual damages are proved.
4. SAME--Application for Cars--Deposit of Money by Shipper. Where a person makes a written application to a carrier for a car, under section 8421 of the General Statutes of 1915, and the carrier does not require any deposit to be made as prescribed by section 8424, and the applicant does not tender any deposit, it is for the jury to determine whether the applicant elected to order the car without making such deposit.
5. SAME--Milling-in-transit Privileges--Shipment Not Rendered Interstate Commerce. A milling-in-transit privilege on a car of grain shipped from one point to another point within this state, where all connection of the shipper with the grain ceases at such point, does not render the shipment interstate commerce, although the consignee at the point of destination may, under the milling-in-transit privilege, ship the grain, or its product, to a point outside the state.
R. W. Blair, T. M. Lillard, A. M. Hambleton, all of Topeka, and A. L. Berger, of Kansas City, for the appellant.
J. K. Cubbison, of Kansas City, Hal R. Lebrecht, and A. J. Bolinger, both of Kansas City, Mo., for the appellee; C. W. Smith, of Topeka, of counsel.
The plaintiff brought this action, consisting of twenty-six causes of action, under section 8423 of the General Statutes of 1915, to recover the $ 5 a day damages given by that statute for delay in furnishing cars ordered by the plaintiff from the defendant. Judgment was rendered in favor of the plaintiff for $ 2,035, and the defendant appeals.
The defendant argues that the court erred in excluding evidence to show that the cars were ordered for shipments in interstate commerce; that the court refused to instruct the jury concerning interstate shipments; that the plaintiff was not entitled to exemplary damages; and that the plaintiff elected to order cars without making a deposit. These matters will be discussed in the order stated.
The plaintiff was engaged in operating a grain elevator at Gorham, Kan., and was buying grain for shipment to points within and without the state. It gave to the defendant written orders for cars in which to ship grain. These orders were, in form, as follows:
. . . .
Different orders bore different dates, and the orders were numbered consecutively. When a shipment was made, the bill of lading was made out by the plaintiff, and a notation was made thereon showing that the shipment was made under a certain numbered car order. The bill of lading was then signed by the defendant's agent. There was delay in furnishing cars under the orders.
1. The defendant, by cross-examination of the plaintiff's witnesses, and on the introduction of its evidence in defense, sought to show that the orders were given for cars to be used in shipments in interstate commerce, but the evidence was excluded. The defendant had pleaded that the orders had been given for cars to be used in interstate transportation. The plaintiff contends that the notation made on the bill of lading was a part of the contract, and that it could not be contradicted, varied, nor altered by parol evidence. The plaintiff's contention is not good. The notation was a recital of a past act, and it might be true or not. It was evidence of that fact, but it was not conclusive evidence. It was no part of the contract of shipment. It was proper to introduce evidence to show that the orders were made for cars to be used in interstate transportation. (Rose and others v. Madden, 1 Kan. 445; 4 R. C. L. 12; 10 R. C. L. 1018; 17 Cyc. 708; 1 Greenleaf on Evidence, 16th ed., § 285.) The evidence should have been admitted on cross-examination, where such cross-examination was proper, and should have been admitted when offered by the defendant to establish its defense. But the error is not available to the defendant, for the reason that there is nothing to show that the excluded evidence was produced on the hearing of a motion for a new trial. (Civ. Code, § 307; Muenzenmayer v. Hay, 98 Kan. 538, 159 P. 1; McAdow v. Railway Co., 100 Kan. 309, 164 P. 177.)
2. The defendant requested the court to instruct the jury as follows:
The law of this state does not control if the cars were ordered for shipments in interstate commerce. (Chi., R. I. &c. Ry. v. Hardwick Elevator Co., 226 U.S. 426, 57 L.Ed. 284, 33 S.Ct. 174.)
In sixteen of the plaintiff's causes of action, the orders were for shipments to be...
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