119 Mo. App. 495 | Mo. Ct. App. | 1906
This action was .instituted by the plaintiff corporation to recover damages sustained by it in consequence of the failure of the defendant railroad company to accept and transport freight offered by plaintiff for transportation at defendant’s station of Caney Creek, in Scott county. Defendant appealed from a judgment for plaintiff. In the year 1903, plaintiff was engaged in getting out of the forest elm logs, which it sold to the Disher Hoop & Lumber Company to be manufactured into barrel hoops. Caney Creek is what is known as a “blind station;” that is, one where there is no station house or agent, but at which all passenger and freight trains stop' when flagged. An employee of the defendant styled “Commercial Freight Agent” and whose name is Miller, had visited Caney Creek and inquired of plaintiff or T. J. Armine, who was cutting the logs, if plaintiff was supplied with cars as they were needed. Armine told Miller the supply of cars was inadequate and Miller promised that enough should be furnished to afford plaintiff timely transportation for its logs. It was necessary to have the logs moved promptly after they were offered for shipment; otherwise they would deteriorate in consequence of “souring;” a process the sap goes through after the logs are cut. It destroys the usefulness of the timber for the manufacture of hoops, because hoops made from soured logs are brittle and break under a slight strain. Plaintiff got out 140,000 feet or more of logs in July and August, 1903, but was only furnished twelve or
The petition avers that plaintiff had on hand at Caney Creek for shipment “in the month of July” a stated quantity of logs, demanded cars to load them and that defendant failed to furnish cars. The letters to Miller were written subsequent to July and defendant asserts they were incompetent for that reason. Other evidence was objected to on the same ground. We see no force in this point. The testimony showed that most of the logs were ready for shipment in July and that plaintiff continued to request cars for months, the logs meanwhile lying at the station and spoiling. The date laid in the petition was immaterial; and, besides, there was no variance between the allegation that the logs were at the station in July and evidence to show they remained there, while plaintiff was vainly requesting cars, until November.
It was contended that Miller, the commercial freight agent, whose office was in Cairo, Illinois, was not the right person to ask for cars and, therefore, blame cannot be imputed to defendant for failing to furnish cars in response to requests made to him. The court was asked to instruct the jury that unless plaintiff notified defendant’s superintendent that the logs were ready for shipment and would become unfit for use unless moved, plaintiff was entitled to no verdict. Such an instruction Avould have ignored the usage recognized by the defendant, of notifying its train conductors to furnish cars when stuff was ready to be shipped from Caney Creek. Neither was plaintiff bound to give notice
We return to the question of the effect of demands on M'iller for cars. No doubt plaintiff must show the logs were offered for shipment to some person having authority to act for defendant in shipment matters : in other words, that plaintiff took the proper step to contract for shipment. [Little Rock R. R. Co. v. Conatser, 61 Ark. 560.] Miller had interviewed plaintiff regarding the supply of cars ánd had promised to see that sufficient cars were furnished. He made the like promise repeatedly in the correspondence. Miller’s dealing with plaintiff in regard to cars was routine matter within his authority, as was shown by a letter which
As there was prima-faeie proof that Miller’s agency included the matter in controversy, we hold that his letters to plaintiff and his conversation with Armine were competent. The main objection urged against these portions of the evidence is that the letters were written, and the conversation occurred, subsequent to the date laid in the petition; a point we have considered.
It is insisted that the evidence showed most of the logs were cut early in July and all by the first day of August; that they lay on the ground thirty days before cars were requested and soured prior to the request. The first complaint of inadequate car service appears to have been made on August 13th. The evidence is far from conclusive that all or any of the logs had become sour by then. This question was one for the jury.
The judgment is affirmed.