Wright v. Midland Valley Railroad Co.

• Decision Date: 26 January 1914
• Citation: 163 S.W. 1151,111 Ark. 196
• Parties: WRIGHT v. MIDLAND VALLEY RAILROAD COMPANY
• Court: Arkansas Supreme Court

163 S.W. 1151

111 Ark. 196

WRIGHT v. MIDLAND VALLEY RAILROAD COMPANY

Supreme Court of Arkansas

January 26, 1914

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; affirmed.

STATEMENT BY THE COURT.

In July, 1907, certain fruit growers living near Greenwood, in Sebastian County, Arkansas, delivered to the Midland Valley Railroad Company for shipment, on different dates, three cars of peaches consigned to Adam Miller, in the city of New York. When the peaches arrived at their destination a considerable portion of them was rotten, and on that account had greatly deteriorated in value. Three separate suits were brought by the consignee and the consignors against the railroad company to recover damages. The complaints alleged that the cars furnished for the shipment of the peaches were not properly iced and also that the peaches were damaged on account of the negligent delay of the carrier in forwarding them to their destination. The railroad company filed an answer in which it denied both allegations of negligence. The cases were consolidated for the purpose of trial.

So much of the evidence as is necessary for a determination of the issues raised by the appeal, briefly stated, is as follows:

In July, 1907, the plaintiffs delivered to the Midland Valley Railroad Company, at Greenwood, Arkansas, on different dates three car loads of Elberta peaches, all then in good, sound merchantable order and shipping condition, and consigned for transportation over the line of said railroad company to Adam Miller, in New York city. When the cars arrived at their destination, a considerable portion of the peaches was found to be rotten and was, therefore, of much less value than when delivered to the railway company for shipment. The plaintiffs also introduced testimony tending to show that the cars were negligently delayed by the railroad company for several days in the course of transportation; that the cars were not properly iced, and that the peaches decayed, by reason of the negligence of the railway company in not properly icing the cars. Plaintiffs also introduced testimony tending to show that the cars were not properly re-iced while in transit. On the other hand, evidence was adduced by the railroad company tending to show that the cars were sent forward in due course of business, and that there was no delay in forwarding the same; that the cars were properly iced when delivered to the consignor for the purpose of loading them with the peaches and that they were constantly kept re-iced in a proper manner while en route to their destination; that there was no icing station at Greenwood, where the cars were loaded; that the cars were properly iced at Fort Smith, the nearest icing station, before they were delivered to the consignors at Greenwood to be loaded; that the city of Fort Smith is about twenty miles distant from Greenwood, and that the cars were re-iced there, as soon as they arrived on their way to their destination.

There was also testimony tending to show that it took from two to three days for the shippers to load the peaches in the cars, and that this was an unreasonable time to use for that purpose; that on account of this delay in loading the peaches the icing in the cars ran low, and that this caused the damage to the peaches.

Other evidence will be referred to in the opinion. Adam Miller died during the pendency of the suit, and the case was duly revived in the name of his administrator. There was a trial before a jury, which resulted in a verdict for the railroad company, and the plaintiffs have appealed.

Judgment affirmed.

Prentiss S. Rowe and Robt. A. Rowe, for appellant.

1. It was error to suppress the deposition of Adam Miller, which was taken upon interrogatories and cross interrogatories after full compliance with the statutes regulating the taking of depositions upon interrogatories. Kirby's Dig., §§ 3178-9, 3180.

2. After suppressing the deposition of Adam Miller, it was error to refuse appellant's motion for a continuance to enable him to take testimony to show what he had testified to, he having died after having given his deposition. Jones on Evidence, § 336, and note 56-a; 18 Ala. 343; 30 Conn. 565; 5 Ill. 575; 87 Mich. 400; 7 Blackf. (Ind.) 10; 1 Ia. 530; 1 La.Ann. 391; 97 U.S. 693; 12 A. 460; 14 Me. 201; 1 Gill (Md.) 95; 70 Mo. 624; 99 U.S. 145; 6 Ired. (N. C.) 30; 5 Den. 370, 49 Am. Dec. 275; 36 Vt. 142; 113 Ga. 327; 76 Minn. 358.

3. The court should have given instructions 5 and 6, requested by appellant on the measure of damages 73 Ark. 112; 74 Ark. 358; 46 Ark. 485; 48 Ark. 502.

4. The seventh instruction, given at appellee's request, is erroneous in that there is no evidence that damage was caused in loading nor that there was delay in loading caused by the plaintiff. 66 Ark. 506; 71 Ark. 38; 76 Ark. 468; 70 Ark. 337; 74 Ark. 563. It is abstract. 96 Ark. 618; 63 Ark. 177; 76 Ark. 348; Id. 599; 77 Ark. 20; 78 Ark. 177; 80 Ark. 260.

5. The court's instructions with reference to the duty of the appellee to re-ice the cars are erroneous, and its instruction 12, especially on this point, is contrary to the law as declared by this court in the Renfroe case, 82 Ark. 148-150. The time necessary to load a car with peaches varies with the season, the conditions influencing the slowness or rapidity with which the crop ripens; and if there is delay in loading creating a necessity to re-ice the cars, it is the duty of the company to do so, and to keep them properly iced during the process of loading, and not "after same was loaded and turned over to it."

Ira D. Oglesby, for appellee.

1. The court can not on appeal consider an alleged error of the trial court in suppressing a deposition, where the motion to suppress, and the testimony introduced at the hearing thereof are not brought into the record by bill of exceptions.

2. If the order allowing the filing of the substituted bill of exceptions be treated as valid, still, on the merits the case must be affirmed because the bill of exceptions on its face shows that it does not contain all the evidence introduced at the trial. 94 Ark. 115; 72 Ark. 183; 75 Ark. 76; 35 Ark. 412; 74 Ark. 427; 83 Ark. 356.

3. There is no error in the instructions. Appellee's contention was that the cars were turned over to appellants properly iced; that they detained the cars unnecessarily at Greenwood where no ice could be had, even had they requested re-icing, and that the peaches were damaged on account of appellant's delay in loading. The verdict sustains this theory and negatives any claim of negligence on the part of appellee.

The Renfroe case, 82 Ark. 143, relied on by appellant, has no application under the facts.

OPINION

HART, J., (after stating the facts).

It is first insisted by counsel for plaintiffs that the court erred in suppressing the deposition of Adam Miller, the person to whom the peaches were consigned. The transcript shows that the court, after hearing the testimony offered in support of and against the motion to suppress, suppressed the deposition of Adam Miller, to which ruling the plaintiffs at the time excepted and asked that their exceptions be noted of record which was accordingly done. Then follows a call in the bill of exceptions for the clerk to copy the deposition of Adam Miller. There is also attached to the transcript an affidavit in support of the motion and one against it, but there is no call in the bill of exceptions for these affidavits, nor is there any call for any testimony that was heard before the court in support of or against the motion to suppress the deposition. The record proper is the complaint, summons and all subsequent pleadings and orders of the court, including the verdict and judgment. Lenox v. Pike, 2 Ark. 14. The office of the bill of exceptions is to bring into the record that which does not otherwise appear therein and which it is necessary to bring to the notice of the court to which the appeal is taken. Kirksey v. Cole, 47 Ark. 504, 1 S.W. 778; Berger v. Houghton, 84 Ark. 342, 105 S.W. 582, and cases cited. This court has repeatedly held that where affidavits, or other evidence, are used on the hearing of a motion for a continuance, if they are not preserved in a bill of exceptions they will not be considered in this court. Watts v. Cohn, 40 Ark. 114; Phillips v. Reardon, 7 Ark. 256; Wise v. Martin, 36 Ark. 305. While it is true that what purports to be copies of an affidavit in support of, and one against, the motion to suppress the deposition are attached to the transcript, still this evidence, not having been made a part of the bill of exceptions, can not now be considered by us on appeal. Moreover, the record sustaining the motion to suppress the deposition shows that evidence was heard on the motion, but, in order to render such evidence available on review, it must be included in the bill of exceptions. While it is proper for the record proper or judgment roll to show that motions of this kind were made and acted upon, neither the grounds of the motion cited therein, nor the evidence tendered therewith, can be received as evidentiary of the facts therein stated, unless they are preserved by bill of exceptions. The grounds upon which the court based its discretion in suppressing the deposition can not be known, nor can it be seen whether or not the court abused its discretion, without a bill of exceptions showing the matters set forth in the motion, and the paper...