Tedford v. Chicago, Rock Island & Pacific Railway Co., 116 Ark. 198

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116 Ark. 198 | Ark. | 1915

Lead Opinion

Kirby, J.,

(after stating the facts). Appellant contends that the court erred in giving instruction numbered 1, peremptory in effect, taking from the jury consideration of its plea of .the statute of limitations, .and we agree with the contention.

The railroad company brought suit against the Hunter State Biank and H. O. Penrose-, for damages for the wrongful taking of the automobile on December 30, 1909, shipped -over its line to- Wheatley, Arkansas. This suit was begun on the 30th day of April, 1910, against the s-a-i-d appellees -'and appellant did not become- a party thereto until iaf ter the filing of their joint answer on the 7th day of March, 1913, praying -that it be made- a party defendant.

Appellant answered on the- 23d day of April, 1914, denying liability and by amendment on March 3, 1914, pleading the statute of limitations of three- years against appellee’s cause of action. The- amendment of appellee’s complaint, asking judgment in' the alternative against appellant, was not made until after the- hearing of the •cause was begun on March 3, 1914.

(1-2) The railroad company had the right to the possession of the automobile shipped over its line to shipper’s order, Wheatley, and it was its duty to retain and deliver it' only upon the surrender of its bill of lading therefor. Midland Valley Rd. Co. v. Fay & Egan, 89 Ark. 342. Its agent permitted the taking of the automobile by appellant as the jury found, on December 30, 1910, and its- cause of action arose thereupon. Having the right to the possession of the automobile, it could have retaken or brought .suit therefor, any time after it was wrongfully neceived by appellant, its cause of action being then complete. Rock Island Plow Co. v. Masterson, 96 Ark. 446; Bruil v. Northwestern Mutual Relief Assn., 39 N. W. (Wis.) 529; Nashville, C. & St. L. Ry. v. Dale et al., 68 Kan. 108, 74 Pac. 596; Pennsylvania Co. v. Chicago, M. & St. P. Ry. Co., 144 Ill. 197, 33 N. E. 415.

(3) The suit mot having been commenced against appellant until after the filing of the joint answer of March 7, 1913, praying that it be made a party, was not commenced within three years after the cause of action accrued, December 30, 1909, the date of 'the wrongful taking of the automobile by ¡appellant, .and is barred by the statute of limitation's. Richardson v. Bales, 66 Ark. 452.

(4) Neither appellant company, the consignor 'and consignee, in 'the bill ¡of lading, nor H. O. Penrose, the alleged purchaser, who was to be notified of the arrival of the shipment, had the right to the possession of the automobile, the bill of lading having been transferred to the Blank of Commerce of Little Eock, and the railroad company being responsible for the 'shipment and liable for a failure to ’deliver in accordance with the terms of its contract 'and bill of lading, was bound to know to whom it was delivered. It does not allege .any concealment of its cause of action by the appellant nor does the testimony .show any such fraudulent .concealment of the cause of taction against appellant as would prevent the running of the statute. It shows at most only that the railroad company concluded, that the. automobile was received and taken by appellees ¡and was uninformed of the taking or receipt of it by appellant, which is not sufficient to remove the bar of the statute. Hibben v. Malone, 85 Ark. 584; McKneely v. Terry, 61 Ark. 527.

It follows that the court erred in 'giving said instruction and since the undisputed testimony .shows that more than three years elapsed after the railroad company’s cause of action accrued before suit was commenced against appellant company, the court should have directed a verdict in its favor.

The judgment i.s therefore reversed and the cause dismissed. .

Dissenting Opinion

DISSENTING OPINIÓN.

McCulloch, C. J., and Smith, J.,

dissenting. The 'evidence was sufficient to warrant ,a finding that the conduct of appellant amounted' to concealment' of the fact that delivery of the automobile wtas procured by its own agent without surrender of the bill of lading. The jury found that the automobile was in fact delivered by the oarrier to appellant's agent, and the failure to disclose that fact, when the carrier was called on to pay damages on account of the alleged wrongful delivery, was a concealment. The assertion of the claim was equivalent, under the circumstances, to an affirmation that the delivery was wrongful, and since it is found by the jury that the representation was false, it amounts to a concealment of fact which prevented- the statute of limitations from beginning to run until the discovery of the fraud. Conditt v. Holden, 92 Ark. 618.

The judgment should, we think, be affirmed.