| Ark. | Oct 21, 1912
(after stating the facts). T. The testimony is not sufficient to sustain the verdict. The complaint shows that appellee sues for failure and neglect “to deliver said shipment of roots to the consignee James Rowland & Company,” and “that by reason of the failure of the defendant to deliver said shipment of roots he has been damaged in the sum of $150.”
The proof on behalf of the appellee himself shows that the appellant did deliver the roots in controversy to James Rowland & Company on August 20, 1910. One of the members of the firm of James Rowland & Company testified as follows: “I received these roots on August 20,1910. I gave a receipt for these three bags, but did not weigh .them. The sacks were in good order when received, to all outward appearances. They were packed in thin bags of cloth material.”
The appellee himself testified that the roots were packed in light cloth material sacks and well sewed up when he shipped them. He also testified: “I was not very careful about getting the exact weight of these three packages before I expressed them.”
The waybill in evidence showed that there were three bags of roots, and that they were billed as twenty-eight pounds. The waybill was numbered 37, and the express number of the shipment to identify it was 38,448. This is precisely the character of the shipment that was delivered by order of the appellee to James Rowland & Company, as shown by the latter’s receipt.
The appellee therefore fails to show any cause of action for nondelivery of the goods by the appellant.
The testimony on behalf of the appellee showed that Rowland & Company received the bags as of the weight of twenty-eight pounds, the same weight he shipped them under. Their agent who received the bags showed in his testimony that he gave the receipt for the bags as weighing twenty-eight pounds, as shown by the waybill, but that he did not weigh them. There is no testimony therefore to show that, if these bags weighed twenty-eight pounds when they were delivered to the appellant at Pettigrew, as claimed by appellee, they did not weigh twenty-eight pounds when they were delivered through appellee’s order to Rowland & Company in New York City. It should be taken, under the uncontroverted proof here, that the appellant company delivered the shipment just as it had received it from the appellee, in good condition, to appellee’s order in New York City. If there was really a loss in the weight of these roots, as appellee claims, his testimony wholly fails to show that that loss occurred by reason of the failure of the appellant to deliver. The loss, if any, under the undisputed facts of this record, must, be held to have occurred after the goods were delivered to Rowland & Company in New York City, and not before.
The evidence shows that the goods were delivered to Rowland & Company on August 20, and that they were not sold until August 22. The loss of the roots, if any, might have taken place, so far as the proof shows to the contrary, between the time that Rowland & Company received them and the time they sold them. The burden was on the appellee, and he has failed to trace the loss of these roots to the appellant. The jury must not be allowed to speculate as to when and where the loss occurred. It was the duty of the appellee to prove by facts and circumstances that the loss, if any, occurred through the failure of the appellant to deliver, as alleged in the complaint.
2. The conclusion we have reached makes it necessary to determine whether the introduction of the letters, exhibits “B, C & D,” was prejudicial error, and in view of a new trial it is only necessary to state that these letters were incompetent. 14 Enc. of Ev. 718.
For the error in overruling appellant’s motion for a new trial the judgment is reversed, and the case remanded for a new trial.