| Ark. | Jan 7, 1907
(after stating the facts.) The complaint and response to the motion to make more definite and certain, which was treated .as an amendment to the complaint, stated a cause of action. The complaints which failed to state a cause of action for failing to furnish cars iin the case of St. Louis, I. M. & S. Ry. Co. v. Carl-Lee, 69 Ark. 584" date_filed="1901-10-26" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Lee">69 Ark. 584, and St. Louis, I. M. & S. Ry. Co. v. Moss, 75 Ark. 66, differ in essential respects from the original complaint-in this case. Here the allegations is that “the plaintiff had placed a lot of elm sawlogs along defendant’s track for shipment, and had made often and repeated demands of defendant for cars upon which to load and ship out logs.” In the cases supra, while substantially the same allegations were made as to the demand for cars for shipment, it is specifically alleged that the demand was made upon certain agents of the company, naming them, and there was no allegation that these agents had authority to furnish cars, or that it was within the scope of their employment to furnish cars, or to receive notice of the demand for cars on the company. In such cases we held that there was no allegation of a tender for shipment or a demand for cars upon an agent authorized to furnish same. But here the allegation is not only that the logs were placed for shipment along the tracks, but that demand was made for cars upon the defendant. The pleader did not undertake to. specify the particular agents upon whom demand was made. If he had done so, it would nave been incumbent upon him to have also alleged that receiving the notice for or furnishing the cars was within the scope of their employment. But here the general allegation that demand was made of the defendant, coupled with the allegation that the logs were placed along the tracks of the defendant at Crawfordsville for shipment, was sufficient to show a tender for shipment and á demand upon the appellant, whose duty it was to furnish cars. An allegation that plaintiff made demand of defendant was sufficient to admit proof as to the agent on whom demand was made, and that such agent had authority to furnish cars. But the case at bar differs essentially also from the cases named supra in that in both those cases the railway company stood on its demurrer to the complaint. Here the appellant answered over and went to trial on the merits. Even if the complaint as amended was still defective, the appellant’s answer, taken in connection with the allegations of the complaint, tendered an issue before the jury as to whether or not appellant negligently failed to furnish cars which resulted in appellee’s injury and damage as set forth in the complaint. Having gone to trial on the merits of this issue upon proofs introduced without objection, which supplied any defects in the complaint, the error, if any, in the court’s ruling was cured after verdict. Sevier v. Holliday, 2 Ark. 512" date_filed="1840-07-15" court="Ark." case_name="Sevier v. Holliday">2 Ark. 512; Davis v. Goodman, 62 Ark. 262" date_filed="1896-04-11" court="Ark." case_name="Davis v. Goodman">62 Ark. 262, and other cases collated in 2 Crawford’s Digest, p. 714, “k.”
The whole case having been developed on the proof, the only questions here are those presented by the assignments of error in the rulings of the court relating to the admission of testimony, the declarations of law, and the sufficiency of the evidence to support the verdict.
Second. The complaint, after alleging that appellee placed logs along appellant’s track ,for shipment, and its repeated demands upon appellant for cars on which to “load and ship same,” and that the appellant neglected and carelessly refused to furnish a sufficient number of cars, etc., proceeds to charge: “That by reason of defendant’s refusal to furnish said cars said logs and timber deteriorated in value, from exposure to the weather and from rot, to the amount of ninety per cent, of its value, or a total sum of $6,377.60; that, by reason of the negligent refusal of the defendant company to so furnish cars as aforesaid, this plaintiff is damaged, etc.” These allegations were sufficient to charge that the negligence of the company in failing to furnish cars was the proximate cause of appellee’s injury. The testimony also was sufficient to warrant the jury in finding that the delay of appellant to furnish cars was the direct cause of the damage sustained by the appellee. Appellant contends that these allegations of the complaint show that “exposure to the weather” was the proximate cause of the injury, and that the complaint therefore fails to state a cause of action. The case of Railway Company v. Neel, 50 Ark. 279, is cited and quoted from to support this contention. ■ But the facts in that case differentiate it from this. That was a suit for. damages from alleged breach of contract to ship cotton. But the proof showed in that case, and the court held, that the damage to the cotton unshipped was not caused by a breach of contract to ship, but was caused by “exposure of the cotton to mud and rain.” The court said: “If the cotton had been properly cared for, the delay would not have caused any deterioration in quality, and the market price is shown to have advanced pending the delay. The only injury in . proof came from the failure to properly care for the property.” But in this case the injury in proof did not come from the failure of appellee to properly care-for the property. On the contrary, the jury were warranted in finding that the logs were properly placed and properly handled, that appellee tendered the logs to appellant for shipment, and took such care for their -preservation during the delay of the railway company to furnish transportation as ordinary prudence in the handling of such property in the usual course of -business demanded. It must be taken as a matter of common knowledge that cotton and sawlogs differ in their inherent qualities. Cotton can be stored and thus protected from the elements, and a short delay in its transportation would not cause decay and a consequent depreciation in value. It was shown here that the only value of the elm timber consisted in its use for hoops, and to be valuable it had to be manufactured into these before the logs decayed. After the elm logs had been cut for a' period of three months they would begin to turn sour at the ends, become brittle, worms would infest them, the bark would peel off, and the process of decay go on. Hence any delay in shipment which prevented their manufacture into hoops before this process of decay began would -directly contribute to -and be the proximate cause -of any deterioration in value of the timber. If shipped promptly, it could be manufactured into hoops before the decay produced by delay took place. The logs in this suit were cut during the months of September, October, November and December, 1903. The logs cu-t during this period would keep for a period of three months. Decay in the logs unshipped began to be noticed about the first of March, 1904, and on May 1, 1904, there were about 312,000 feet of elm logs left on the ground at the station of Crawfordsville for -injury .to which on -account of delay in -shipment, caused by the alleged failure of appellant to furnish cars, this suit was/brought.
This court in recent -cases has declared the duty of common carriers, by the common law and by statute, to furnish transportation facilities for such goods as they undertake to carry to all who may apply for same in the regular and expected course of business. Where there is an unprecedented and unexpected press of business, such as the carrier could not by ordinary prudence in the usual course of the traffic have contemplated, he is excused for not having' anticipated and provided against such extraordinary conditions. St. Louis S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 357" date_filed="1906-01-06" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Clay County Gin Co.">77 Ark. 357; Choctaw, Oklahoma & Gulf R. Co. v. State, 73 Ark. 373" date_filed="1904-12-24" court="Ark." case_name="Choctaw, Oklahoma & Gulf Railroad v. State">73 Ark. 373. See also Little Rock & Pt. S. Ry. Co. v. Oppenheimer, 64 Ark. 271" date_filed="1897-10-02" court="Ark." case_name="Little Rock & Ft. Smith Railway Co. v. Oppenheimer">64 Ark. 271; Little Rock & Pt. S. Ry. Co. v. Conatser, 61 Ark. 562. See also Hutch, on Car. § 292; 4 Elliott, Railroads, § 1470; 6 Cyc. 372, and cases cited in note.
The court declared the law bearing, on these questions in instructions numbered four., five and six given at appellant’s request. There was evidence to sustain the verdict, and the verdict was not excessive. The evidence tends to show that ¿here'was on the ground at Crawfordsville, May I, 1904, 312,000 feet of elm logs. At this time decay had already commenced. As we understand the pleadings and proof, appellee contends that it was the failure of appellant to furnish cars for this 312.000 feet before the decay set in .that caused its damage. It would have taken 78 more cars than appellee received up to May 1, 1904, to have shipped these logs, for a carload was 4.000 feet. The proof showed that the logs at Crawfordsville, undamaged, were worth $10 per thousand feet or $3,120. The jury might have found from the .evidence that the logs were damaged on account of the delay in shipment to the extent of .80 per -cent, of their value, or $2,496, the amount of the verdict.
Third. There was no prejudicial error in submitting to the jury the question as to when the title of.the logs in controversy passed under the contract between appellee, and Smith and Thomas. The verdict of the jury was in accord with the proper construction of the contract. The purpose of the contract, as shown by the proof, was to enable appellee to control the entire output of elm logs cut by Thomas and Smith or controlled by them. Under the written agreement the court should have told the jury that the title to the elm logs that should be got out by Smith and Thomas passed to .appellee on the day the written agreement was executed, September 21, 1903. It was a present sale of the timber with an agreement for future services concerning same. Lynch v. Daggett, 62 Ark. 592" date_filed="1896-10-03" court="Ark." case_name="Lynch v. Daggett">62 Ark. 592; Anderson-Tulley Co. v. Rozelle, 68 Ark. 308. Wherever the logs were cut within fifty-miles of Wynne by Thomas and Smith, they belonged to appellee. But Smith and Thomas were to haul and load them on the cars. But the writing was no more than a memorandum, as shown by the evidence aliunde. It did not contain all the terms of the contract -between the parties. The evidence showed that there was an agreement as to the dimensions of the logs, that they were to be scaled weekly, stamped, and when this was done $7 per thous- and feet was to be advanced on them. The contract is silent as to these things, yet they were essential features of the contract as a whole, and show that the writing did not purport to be, and was not, the whole contract. The court therefore did not err in permitting oral evidence, of what the entire contract was. Nothing in the oral proof contravened the terms of the writing, but only showed that it did not contain all the provisions of the contract between the parties. If it was error to prove the custom of the trade as to when the title to logs passed, it was not an error of which appellant can complain; for, as we view the writing, the jury construed it as the court must have done, had it not submitted the question to them.
Fourth. We find no prejudicial error in the refusal of the court to give appellant’s eighth and ninth prayers as asked, and in giving them as modified. The substitution of the words “logs less liable to damage” for the words “newer and fresher logs and timber” in the eighth prayer conveyed the same idea intended by the words in the prayer as asked, but in more appropriate terms. The addition of the words, “but such method and order of loading, if it occurred, would not bar a recovery unless plaintiff had reason to believe that defendant would not furnish a sufficient number of cars to remove all the logs before damage thereto would occur,” was not prejudicial.
Witness Coleman testified that the people at Crawfordsville had a number of logs “piled along at a certain skidway, and when they were loading they would take up the logs that were handy right next to the skidway and then haul again and bring the logs next to the skidway and load these, and in that way cause the fresh logs to be hauled out first.” But tire witness, although asked, does not identify appellee’s agents as the- people who were loading in that way. The positive proof on the part of appellee was to the effect that the logs were loaded in the order in which they were hauled, or in such manner as to ship out first the logs most liable to injury. Moreover, there was abundant evidence from which the jury might have found that appellant, by its oft-repeated promise to furnish cars, gave appellee reason to believe that no injury to his timber was to be apprehended frdm a delay in its shipment. Substituting the words “for the timber so damaged” for the word “therefor” in the ninth prayer did.not change its meaning. There was no error in the court’s charge. It fully presented the law applicable to the facts proved.
Fifth. While the evidence tended to show that appellant had a rule requiring demands for cars to be in writing, and that appellee did not observe this rule, the testimony also tends to show that the observance of this rule on the part of appellee was waived by appellant. No written demands were insisted upon by appellant. Moreover, there is no assignment of error in the motion for new trial for failure of .appellee to observe the rules of appellant requiring written demand for cars.
The record presents no reversible error, and the judgment is therefore affirmed.