118 Ark. 409 | Ark. | 1915
(after stating the facts). The court erred in not granting ¡appellant’s prayer No. 4 for instruction. The undisputed testimony showed that the carload of coal in controversy was a through shipment from St. Charles, Ky., to Mesa, Ark. The Hunt-Berlin Coal Company, from whom the appellee bought the coal, directed the coal to be shipped from the mines in Kentucky -over the Illinois Central Railroad. The bill of lading or contract under which the shipment was made provided that 'claim for loss, damage or delay should be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, ¡and that unless claim was so made, the carrier should not be liable.
The testimony showed that under the contract between the initial carrier and the Hunt-Berlin Coal Company, the latter company could rebill the oar when it arrived at Memphis to any of its customers, and that when so rebilled or reoonsigned it became a continuous or through shipment from the point of origin to the place of ■final destination.
The tariff rates on coal destined to Memphis over the Illinois Central provided that coal might be reconsigned to points beyond in the same general direction at the balance of the through rate. There was a through rate in effect at that time from Fox Bun, Kentucky, to Mesa, Arkansas. When there is a reoonsignment from Memphis the consignee at the place of final destination pays the through rate. The Hunt-Berlin Coal Company, in reconsigning the carload of eoial, did not procure another bill of lading from Memphis to Mesa, but “merely directed that the carload of coal be sent from Memphis to destination under the same bill of lading.”
In determining the rate which Foster had to pay on the carload of coal “the regular flat rate from the mines to Memphis 'and the regular rate from Memphis to Mesa were added together and he paid the full sum of the two. The freight was not made any cheaper by virtue of the reeonsignment. ’ ’
The above testimony was certainly sufficient to entitle appellant to have the jury instructed that the con-' tract of affreightment between it and the appellee was that provided by the bill >of lading issued by the Illinois Central Bailway Company, the initial carrier. The appellant’s prayer for instruction No. 4 wa,s¡ based upon the uncontroverted evidence. In refusing it the court ignored one of the material issues in the case which the testimony proved. The carload of coal having been shipped under the original bill of lading, issued by the Illinois Central Bailway Company, the jury should have been told that as the appellee did not make a claim in writing for damages to his rice crop to the railway company at the point of delivery or at the point of origin of the shipment within four months after the delivery of said shipment, 'his action was barred. Chicago, Rock Island & Pacific Ry. Co. v. Williams, 101 Ark. 436.
For the error indicated the judgment is reversed and the cause dismissed.
