St. Louis, Iron Mountain & Southern Railway Co. v. Laser Grain Co., 120 Ark. 119

120 Ark. 119 | Ark. | 1915

Kirby, j.,

(after stating the facts). (1-2-3) Appellant’s first contention is that the court erred in not finding in its favor because no claim in writing for damages was made to the carrier within four months after the delivery of the shipment, as required .by the bills of lading. A stipulation of like kind in a bill of lading or contract of carriage has been held reasonable and valid and the failure of the shipper to present his claim in writing within the time specified, conclusive of his right to recover. See Chicago, R. I. & P. Ry. Co. v. Williams, 101 Ark. 436; Chicago, R. I. & P. Ry. Co. v. Foster, 118 Ark. 409. Failure to give notice in accordance with, this provision of the contract of carriage, having been specially pleaded and relied upon as a defense, cast the burden of proof upon the .shipper to show either a compliance with it or a waiver of the requirement by the carrier in order to a recovery. St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 313; St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 357; Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406 and 415. Such a stipulation has been held to be one for the protection of the carrier, compliance with which can be waived by it. 6 Cyc. 509; St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154; St. Louis, I. M. & S. Ry. Co. v. Shepherd, 113 Ark. 248, 168 S. W. 137.

It is true that no claim in writing was made to the carrier either-at the point of origin or delivery of shipment within the time specified. But it is also true that a written claim for damages upon each of the shipments made, except three cars, was presented to the general freight agent of the railway company in St. Louis by appellee company, whose manager talked with the agent upon the adjustment and settlement of the .claim for damages upon each of said cars, and also with the agent, Mr. Wyler, of the A. R. T. 'Company, to whom he was referred by appellant’s agent relative thereto. This witness stated the claims for each of the said cars, except three, were made out in writing and mailed to Mr. Walton, the general freig'ht claim agent of the railway company at St. Louis, and that the receipt of claims had been acknowledged by said agent upon postal cards, introduced in evidence by the witness, and he also stated that he had personally discussed with and negotiated for the settlement of each of the claims with said general freight claim agent in St. Louis, having all of them in writing with him and presenting them for the purpose of settlement; that neither of the agents at any time objected to the investigation or settlement of any of the claims because they were not presented in different form, or to the agent at the point of shipment or destination.

The freight claim agent of appellant company did not testify and Mr. Wyler, the agent of the A. R. T. Company, stated that the claims in writing for damages -upon twenty-one of the cars shipped had been presented to him by the direction of appellant company for investigation and adjustment. Thus the claims were presented in writing to the general freight agent of appellant company and also by his direction to the agent of the A. R. T. Company for investigation, and negotiations between appellee and such agents looking to an adjustment, and settlement of these claims for damages were pending for some time thereafter without any objection made upon the part of appellant that such claims were defective or made out of time, and appellant company waived its right to insist upon compliance with the terms of the stipulation relating thereto upon all the cars for which such claims for damages were made within the four months allowed therefor.

(á) The court declared the law, as requested 'by appellant, that the amount of damage or loss for which it was liable should be computed on the basis of the value of the property shipped at the time and place of shipment, upon the bona fide invoice price to. 'Consignee, including the freight -charges if prepaid, in accordance with the terms of the bill of lading.- And the manager of appellee -company stated that his estimate of damages was made upon the basis of the invoice price on the peaches shipped f. o. -b. ears at the point of shipment, except the cars .sold on consignment. He also testified relative thereto, and there was other testimony tending to show the various other items of expense claimed as damages.

(5) It is next contended that the court erred in permitting the manager -of the appellee company to testify to the market price of peaches in Boston at the time the three cars in question should have -been delivered there from his knowledge based upon market reports and quotations not produced in evidence. This witness stated that he kept informed of the market price of peaches in Boston during the time the -shipment should have arrived, from the market quotations and reports published in the newspapers and otherwise, and that -such value was as stated by him.

In St. Louis & S. F. Ry. Co. v. Pearce, 82 Ark. 358. the court said: “Standard price lists and market reports, shown to be in general circulation and relied on by the commercial world and by those engaged in the trade, are admissible as evidence of market values of articles of trade.”

The witness here did not produce the papers and journals containing the published market quotations and reports, but he testified that he kept up1 with the market, that he examined and was familiar with the reports and knew the market value to be as stated, because of the information derived from such published reports. We do not think this testimony was incompetent as being hearsay, for the market value is indicated by the prices received and paid for articles of commerce, by those dealing therein and a witness who was present and saw the general public sales made at the prices offered and accepted, could testify thereto in establishing the market value of that article or commodity, at the time and-place, without producing the bids and acceptances, or having published copies thereof, arid we think it was competent for him to testify to the market value of the article in a particular' market as he did, without producing the published reports and quotations in support of his statement. The ■fact that his statement was based upon such knowledge without producing the reports, price lists and quotations going rather to the credibility of the testimony, than to its competency.

(6-7) This testimony related only to damages claimed upon the cars shipped to Boston to be sold upon, commission there, and, of course, it was competent to prove the damages upon all such shipments as had not been made upon orders and an agreed invoice price.. The rule for computation of damages for delay and injury in transportation of goods is the difference between the market price of the goods at the time and place when and where they should have beeen delivered and their value when and in the -condition in which they were delivered. St. Louis, I. M. & S. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.

(8) It is next insisted that the court erred in not finding as a fact that the railway company was not able to furnish proper cars for the shipment of peaches on account of the unusual and unprecedented demand for refrigerator cars for the crop of 1912. There was testimony tending to show that only 472 cars of peaches were shipped from the State in the year 1907, the largest shipment in any one year until 1912, during which year there were shipped 3,194 cars or an increase of almost 600 per cent.

Two witnesses testified that every possible effort was ¡made by the A. R. T. Company, which owned 3,700 oars, to furnish and provide refrigerator cars for carrying the peach crop of 1912 to market. They used all the .cars they had and all they could procure' from other companies in furnishing the ¡carriers of the .State cars for transportation of the peaches. One of these witnesses stated that they began preparations early in 1912 for estimating the probable ¡crop and supplying cars for the transportation of it and that it was impossible to have refrigerator cars manufactured in time to remove the ¡crop of 1912 after its magnitude was indicated in the early spring.

One witness testified, however, that there was no such shortage of refrigerator cars as prevented the supply of the requisite number for carrying to market the peach crop of the State of Arkansas, and it was ¡shown that the crops of Texas, requiring refrigerator cars for transportation had been moved before it had been necessary to begin the shipment of the Arkansas peaches, and that sufficient cars could have been had for the purpose upon reasonable and proper effort made to secure them.

(9) Appellant’s requested declaration of the law was erroneous even if the testimony had warranted the>, finding of fact requested. Although a .common carrier-is bound to provide reasonable facilities of transportation to all shippers at every ¡station, who in the regular and expected course of business offer their goods for transportation, it is not required to prepare in advance for an unprecedented and unexpected rush of business, and therefore will be excused for delay in shipping or even in receiving goods for shipment until such emergency can in the usual and regular course of business be removed. St. Louis S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 362.

"There is a mass of testimony in the record relating to the claims for damages upon twenty-seven different cars of peaches ¡shipped 'and appellant claims to have made a fair and as full an abstract as practicable of the testimony relating to the claim of damages upon each car.

(10) Appellee claims generally that the abstract is not full and complete, ¡biut only ¡challenges it specifically relative to ¡count No. 9 of the complaint, saying in its ¡brief: “We take the testimony as to this car at randoin, it not being practical, as counsel ¡says, to go into analysis of the testimony as applied to each car. # * * We not only call attention to the testimony relating to this particular car as a sample of the testimony with reference to other cars, but also to the manner in which the testimony has •been abstracted by counsel for appellant.”

Necessarily the court ¡can not be expected to explore the record to ascertain whether appellant’s abstract of the testimony relating to the claim of damages for each car under each count of the complaint is fair and sufficient when appellee’s counsel have not found it practicable to do so, and do not ¡object to ¡such abstract .specially except as to ¡count No. 9.

It will suffice to ¡say that the testimony has been carefully read and considered. It is sufficient to support the court’s findings as to the amount of damages for which judgment was rendered under counts Nos. 3, 4, 6, 7, 8, 9, 10, 12, 13 and 17, and ¡on counts Nos. 1 for $371.45; 2, $363.01; 14, $270.98; 15, $346.34; 18, $190.17; 19, $225.45, and 26, $198.95.

The testimony js not sufficient to support a recovery under ¡counts Nos. 5, 11, 16 and 22. There was no acknowledgment of receipt of a claim for damages upon the cars ¡set out in counts Nos. 20, 21, 24, 25 and 27 within the time required, and the testimony does not definitely show that a claim for damages was made in any manner upon these cars and negotiations entered into for their settlement before the expiration of the four months stipulated in the bill of lading in which the claim was required to be made.

It is true the manager of appellee company or Ms father for him claimed to have talked with the railroad claim agents relative to the claims for damages on these cars, but the testimony does not show that such conversations occurred ¡before the expiration of the time and the burden of proof to show waiver being upon appellee, was not sustained.

The judgment must therefore ;be modified, and after deducting the amounts from the trial court’s findings under the different counts of the complaint, as indicated, and the amounts not allowed under the other counts, as stated, will be entered here for the sum of $4,281.87, with interest as allowed by the judgment of the court below, with the costs of appeal adjudged against appellee.

It is so ordered.