103 Ark. 522 | Ark. | 1912
Lead Opinion
(after stating the facts). Counsel for appellants first object that the court erred in allowing Fordyce to state, in answer to interrogatory 6, that he had received a communication from Morrison relative to the shipment of the gin shaft rod to his company for the purpose of repairing it or manufacturing a new one. Even if it be conceded that his testimony in this respect was hearsay, it is immaterial, for the undisputed evidence shows that the gin shaft rod was shipped to his company for the purpose of being used as a model in making a new one.
It is next contended by counsel for appellants that his answer to interrogatory 7, in which he stated that the company’s records show that the gin shaft rod was received by his company November 3, 1910, was incompetent as being hearsay. We can not agree with him in this contention. Mr. Fordyce had testified that he was president of the company, and that the company received mail orders for repair work and gave prompt attention to it. Obviously, it would be impossible for him to carry all these orders in his head, and he might refer to his records for the purpose of refreshing his memory in regard to the date that he received the shaft rod.
Finally, it is insisted by counsel for appellants that this testimony was not sufficient to warrant the jury in finding that there was a delay in the shipment of the shaft. They say that his testimony merely goes to the extent of showing that he received the rod on that day, but does not show that he received it as soon as it arrived at Little Rock. It was the duty of the carrier to give the consignee, the Thomas-Fordyce Manufacturing Company, notice of the arrival of the shipment at Little Rock. St. Louis, I. M. & S. Ry. Co. v. Townes, 93 Ark. 430. See, also, Railway Company v. Nevill, 60 Ark. 375. Therefore we think it fairly inferable from the testimony of Fordyce that his company received the shaft from the railway company as soon as the latter notified it of the arrival of the shaft at its destination.
Counsel for appellants also insist that the court erred in allowing appellee to state what the agent told him as to the length of time it would take to ship the shaft to Little Rock. On this question the court gave the jury the following instruction :
“1. If you find from a preponderance of the evidence that the plaintiff delivered to defendant at Gillham, Arkansas, his gin shaft on September 27, 1910, to be shipped to ThomasFordyce Manufacturing Company, at Little Rock, Arkansas, and paid the freight demanded of him, it then and there became and was the duty of the defendant company to use ordinary care to. promptly carry the same from said Gillham to said Little Rock.”
In the case of the St. Louis, I. M. & S. Ry. Co. v. Deshong, 63 Ark. 443, the court held: “Error in admitting oral evidence of the time at which a railway agent agreed that horses shipped over its road would be delivered at their destination under a written contract is cured by an instruction that the only obligation of the company as to the time of forwarding the horses was to do so within a reasonable time.”
The action of the court in giving this instruction cured the error of admitting the oral testimony to vary the terms of the written contract, and by it the court submitted to the jury the question as to what, under the facts and circumstances of this case, would constitute an unreasonable delay which would make appellants liable in damages.
There was no error in the instruction as to the measure of damages. According to the testimony of appellee, he had purchased a gin plant which had been run in that neighborhood the previous year, and which was the only gin plant in that immediate neighborhood. It had an established custom, and the testimony showed that it could not be run without the shaft rod. Appellee says that he told the agent that his gin would have to remain idle until the shaft rod was repaired. The instruction on the measure of damages was substantially in accordance with the principles of law announced by the previous decisions of this court in the following cases: Chicago, R. I. & P Ry. Co. v. Planters’ Gin Co., 88 Ark. 77; St. Louis, I. M. & S. Ry. Co. v. Lamb, 95 Ark. 209; Hooks Smelting Company v. Planters’ Compress Co., 72 Ark. 275.
The bill of lading provided that notice of claim for damages should be given to the railway company within four months after the delivery of the shaft rod to it for shipment. The shaft was shipped on September 27, 1910, and the complaint in this case was filed on January 4, 1911. Therefore, the suit was filed within four months of the date of shipment, and the suit itself was notice to the carrier of the claim of appellee for damages on account of unreasonable delay in transporting the gin rod.
It follows the judgment will be affirmed.
Rehearing
ON REHEARING.
Opinion delivered April 22, 1912.
Counsel for appellants insist that the effect of our original opinion is to hold that proof of the date when the records of the Thomas-Fordyce Manufacturing Company show that the shaft was received by it is sufficient to show delay in carriage on the part of the railway company, and that the opinion in this respect is wrong. Consideration of counsel’s brief and a reconsideration of the case leads us to the conclusion that he is right. The burden of proof is on the appellee to show nondelivery or delay in delivery by the carrier to the consignee. 6 Cyc. 449 and 519.
The shaft rod was consigned to the Thomas-Fordyce Manufacturing Company at Little Rock, Ark. The only testimony tending to show delay in delivering the shaft rod to the consignee was that of John R. Fordyce, president of the company. He was asked: “Please state the date on which you received the gin shaft rod at Little Rock?” and answered: “Company records show November 3, 1910.” He does not state that he had any personal knowledge of when the shaft rod was received by his company, or that he had any knowledge at all when it was received except that which was shown by the company records. He does not state that he kept such records, or had any supervision of keeping them. The records were not even shown to have been correctly kept. Hence his testimony as to what they showed was hearsay and incompetent. If he personally supervised the receipt of goods shipped to his factory and himself made a record of the date of their receipt, it might be said that he had personal knowledge of the matter about which he was testifying, and he might look to his records to refresh his memory about the date when he received the shaft rod.
In this view, the motion for a rehearing should be granted, and it follows that the judgment should be reversed, and the cause remanded for a new trial.
