201 P. 804 | Okla. | 1921
The defendant in error herein, plaintiff below, brought an action in the district court of Oklahoma county, Oklahoma, December 8, 1917, against the Chicago, Rock Island Pacific Railway Company, praying for damages in the sum of $526.52, for failing to furnish cars as requested, in order to ship hogs and cattle from Apache, Oklahoma, to Oklahoma City, Oklahoma, November 5, 1917.
The petition in said cause, omitting the formal parts, is as follows:
"Plaintiff states that all times hereinafter mentioned the Chicago, Rock Island Pacific Railway Company, the defendant named above, was and is a corporation, duly organized and authorized under the laws of the state of Oklahoma, as a common carrier for hire and as such engaged in the transportation of livestock between and beyond the points mentioned.
"That on the 28th day of October, 1917, he ordered three cars in the usual manner, from the local freight agent of the defendant, at Apache, Oklahoma, for the shipment of cattle and hogs from Apache, Oklahoma, to Oklahoma City, Oklahoma, and to be loaded out on the 30th. That on the 29th of October, the agent told him that he could not load before the 31st; that on the 30th the agent said he would have no cars for the 31st, but promised and agreed to furnish him the three cars for November 2nd, No cars were furnished on this date; that after various other statements, that plaintiff could load out on November 3rd, the agent said he would have a train of cars for the plaintiff for Sunday, November the 4th: that on the 4th of November the agent promised and agreed again to have three cars ready for the plaintiff to ship Monday, November *267 the 5th, and that acting and relying on the promise of said agent to furnish said cars, he delivered to the defendants at Apache, Oklahoma, 2 car loads of hogs, consisting of 221 head, and 1 car load of cattle, consisting of 36 head of cattle, all in good order and condition and of which he was the owner for transportation and delivery for the market and immediate sale at Oklahoma City, Oklahoma, and consigned to the C. M. Keys Commission Company at the National Stock Yards. That the same were to be transported and delivered in the usual and ordinary time and manner and that the defendants so received the same.
"That it was within the power and province of said defendants to have furnished said cars within the time as agreed by their agent as aforesaid, but that on the contrary said defendants and their agent delayed said shipment and wholly and wrongfully failed, refused and neglected to furnish said cars even after the delivery of the livestock to their line for some four days and did not deliver the same to Oklahoma City until the 9th day of November, 1917.
"That for reasons aforesaid, in failing to furnish said cars as aforesaid, and in delaying said shipment for such unusual and extraordinary time the plaintiff was and is actually damaged to said hogs and cattle in the sum of five hundred twenty-six and 52/100 ($526.52) dollars.
"That the usual and ordinary time and a reasonable time for said shipment to have been delivered had the cars been furnished was 12 hours.
"Wherefore, plaintiff prays judgment against said defendant, in damages in the sum of $526.52, six per cent. interest on said amount from Nov. 5th, 1917, his costs of this action and any further relief to which he may be entitled under the law."
The defendant answered by general denial, and by admitting the corporate capacity of the defendant and that it was on the date mentioned engaged in the business, of common carrier.
The cause was tried to the court and jury on the 28th day of May, 1918, and resulted in a verdict and judgment in the sum of $526.52, the amount sued for by the plaintiff.
The defendant filed timely motion for a new trial, alleging the usual statutory grounds, which was overruled by the court and exceptions saved to reverse which aforesaid judgment this proceeding in error was commenced.
Petition in error assigns as error the over. ruling of the defendant's motion for a new trial, which, among other grounds, includes as error the overruling by the trial court, at the close of the evidence, of the defendant's motion for a directed verdict, and the trial court's overruling the objection of the defendant to instruction No. 4, which submits a state of facts not supported by the evidence. It is desired to present these matters under five fundamental specifications:
(1) No contract or promise to furnish cars.
(2) Failure to supply cars.
(3) Corporation Commission orders as laws.
(4) Revised Laws of Oklahoma 1910, sec. 788, to be followed.
(5) Court erred in giving instruction No. 4.
These propositions are related, and will be considered together.
The plaintiff alleged in his petition that on the 4th day of November, 1917, the agent of the defendant promised and agreed to have three cars ready for the plaintiff to ship Monday, November 5th, and that, acting and relying on the promise of the said agent to furnish said cars, he delivered to the defendant at Apache, Oklahoma, two carloads of hogs, consisting of 221 head, and one carload of cattle, consisting of 36 head of cattle, all in good order and condition, and of all of which he was the owner for transportation and delivery for the market and immediate sale at Oklahoma City, Oklahoma, and consigned to the C. M. Keys Commission Company at the National Stock Yards: that the same were to be transported and delivered in the usual and ordinary time and manner, and that the defendant so received the same; that it was within the power and province of said defendant to have furnished said cars within the time as agreed by its agent as aforesaid, but that, on the contrary, the said defendant and its agent delayed the said shipment and wholly and wrongfully failed, refused, and neglected to furnish said cars after the delivery of the live stock to their line for some four days, and did not deliver the same at Oklahoma City, Oklahoma until on the 9th day of November, 1917; that the usual and ordinary time and a reasonable time for said shipment to have been delivered, had the cars been furnished, was 12 hours, and that in failing to furnish said and in delaying said shipment for such unusual and extraordinary time, the plaintiff's actual damage to said hogs and cattle was the sum of $526.52. *268
The testimony of the plaintiff was not disputed and he testified that he had ordered these cars several times, as alleged in his petition, over the telephone from his residence seven or eight miles in the country from Apache, Oklahoma, and on Sunday morning, November 4th, the agent promised and agreed again to have three cars ready for the plaintiff to ship Monday, November 5th; and testified that he told him, the agent, that he, the plaintiff, would be ready to ship by 10 o'clock, Monday, without fail, and the agent replied that he would have a stock special that day, and would have cars for plaintiff's shipment; "that Sunday evening about 5 o'clock the agent called me and said that he had a few cars and wanted to know how many I could possibly get along with, as few as I could, and I told him, and he said all right, that he would have me cars; and I had my cattle out home and he said that he had to move some other stuff, so I went ahead and notified the people to get my stuff ready, and that I would be ready to ship the stuff on Monday by ten o'clock, and on Monday at ten o'clock, I had all the stock there."
The plaintiff testified on cross-examination as follows:
"Q. And you say you were disappointed because you could not get the cars? A. Yes, sir. Q. And you were in Apache practically all day Monday, Wednesday, and Thursday? A. Yes, trying to get the cars. Q. And it was your impression that you could get the cars when you ordered them? A. Yes, for I had telephoned in and told them and they had advised me that I could get the cars, and that was all that I wanted to know, and I got my stuff all ready to ship, and then they informed me that they had sent the cars out and I would have to wait for some cars. Q. You had ordered the cars over the telephone? A. Yes, sir. Q. You did not send in written application or demand for the cars? A. No, I did not. Q. Just had a telephone conversation with the agent or cashier? A. I had a conversation with the agent on Friday, before the train left on Sunday. Mr. Jeffery didn't want any written order, it was all right. I have always just ordered the cars from him this way, and he had promised me some cars on Friday. Q. And it was your understanding that you would get the cars from Mr. Jeffery? A. Yes; and then when he said that he did not have the cars he telephoned to me, and that was when he found that he could not provide the cars as promised. Q. And did you tell him to get the cars for you as soon as possible, you still wanted them? A. Yes, of course: I was anxious to get my stuff shipped. Q. And you say that you had your stock there in the pens to be shipped Monday? A Yes: by ten o'clock that morning and they never left until Wednesday and did not arrive in Oklahoma City until the 9th."
The defendant's agent at Apache did not deny this testimony of the plaintiff further than to say that he did not remember all that was said.
The plaintiff further testified that he had lived at his present location west of Apache and been engaged in farming and shipping stock for seven or eight years, making shipments during the last five or six years on an average of six shipments a month, and during that time, the testimony showed, Mr. Jeffery had been agent of the defendant at Apache, and that the plaintiff ordered cars for his shipments of live stock by telephone and that the agent or defendant's cashier would make a memorandum of the orders for cars on the blanks of the company, giving them a serial number, and that the number for this shipment was 25, and was made in the first conversation over the 'phone on October 28th.
Mr. Jeffery, the agent, testified concerning this order as follows:
The plaintiff testified as to the expense incurred by him for feed for the stock while In the pens at Apache, and as to the shrink. age in weights of the stock, showing that the same were weighed at Apache, and also when sold in Oklahoma City, and as to the price the same were sold for, leaving it an easy matter for the jury to figure and cast up the amount of damage. However, it is not claimed that the award of the jury was excessive in case the defendant was at all liable.
The defendant's defense was upon the theory that there was no liability of the defendant shown; that no contract to furnish cars was proven, and no negligence or delay in furnishing cars was proven. The defendant offered quite a mass of testimony going to the question of a general shortage of cars throughout the country during the year 1917 *270 and the demands made upon the defendant for cars by the government of the United States, and its effort to comply with such demands, and urging, therefore, that under the circumstances of this case the defendant was not negligent; also orders of the Corporation Commission of this state defining what was a reasonable time in which to furnish cars, and arguing that, disregarding the manner in Which the plaintiff ordered the cars, the testimony of both parties is that the cars were placed within the time fixed by the Corporation Commission.
We cannot agree with defendant's contention thus made, that the same constituted a defense to the plaintiff's cause of action in the circumstances shown by the record. Had the defendant company stood upon its rights in the circumstances shown by its testimony and declined to agree to furnish cars except on a written order made therefor by the shipper, and at an earlier date than that fixed by order of the Corporation Commission defining a reasonable time, quite a different situation would have been presented, and doubtless this suit would not have been here for determination by this court. It is apparent from the record hereinbefore recited that the plaintiff's cause of action is based upon an agreement of the defendant's agent made in the customary way, he making such agreement to furnish a definite number of cars at a specified time, charging a failure of the defendant to comply with such agreement, and that the plaintiff suffered detriment on account of such breach. We think the testimony was amply sufficient to take the question of the alleged breach of the agreement to the jury, and was also sufficient to support the findings of the jury as to the amount of damages that the plaintiff suffered as a result of the breach of such agreement by the defendant. Therefore the defendant's demurrer to the evidence was properly overruled by the trial court.
The defendant complains of the 4th paragraph of the court's instructions to the jury. We have carefully examined the instructions. and find that the same show a fair and reasonable statement of the law applicable to the facts of this case and that this contention of the defendant is without merit.
It has been the universal holding of this court that where there is any testimony reasonably tending to support the verdict of the jury, in such circumstances the same will not be disturbed by this court on appeal. Armstrong, etc., Co. v. Crump,
Shepherd,
The judgment of the trial court is affirmed.
HARRISON, C. J., and KANE, MILLER, and KENNAMER, JJ., concur.