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the decision on that issue raised by the motion to quash the service, if erroneous, could CHICAGO, R. 1. & P. R. CO. V. DAWSON. and should have been corrected by appeal.

(No. 216.) [1] The doctrine is well established by numerous decisions of this court "that a writ

(Supreme Court of Arkansas. March 12,

1923.) of certiorari should not be used in any case where there

has been a right of ap-1. Carriers 228 (5)-Evidence held to show peal unless the opportunity of appealing has demand to divert delayed shipment to an, been lost without the fault of petitioner," or other route, and that, if granted, injury unless the court in the proceedings, which

would not have resulted. the petitioner seeks to have reviewed and Evidence held sufficient to establish a dequashed by certiorari, has acted without, or mand on the part of a shipper that a shipin

of, its jurisdiction. Lamb & ment of cattle, delayed because of a strike, Rhodes v. Howton, 131 Ark. 211, 198 S. w. be diverted to another route, and that, if the 521; Hilger v. J. R. Watkins Medical Co., been no further delay and injury would not

request had been granted, there would have 139 Ark. 400, 214 S. W. 49, and other cases have resulted. cited in Cumulative Supp. Crawford's Ark. Dig. 1922, p. 162; Stroud v.' Conine, 114 2. Carriers w218(6)-Duty to use reasonable Ark. 304-309, 169 S. W. 959; Carolan v.

dlligence to find open route for delayed ship

ments, though contract exempts from liaCarolan, 47 Ark. 511, 2 S. W. 105; Gregg v.

bility. Hatcher, 94 Ark. 54, 125 S. W. 1007, 27 L. R.

It is the duty of a carrier to use reasonable A. (N. S.) 138, 21 Ann. Câs. 982; Griffin v. diligence to prevent injury to delayed shipments Boswell, 124 Ark. 234, 187 S. W. 165, and by finding an open route, and may not unreasonnumerous cases cited in 1 Crawford's Digest, ably delay, though its contract exempts it from p. 908 (Certiorari).

liability. [2] After the petitioner entered its special 3. Carriers 219(4)—Initial carrier held llaappearance and moved to quash service,

ble for failure of connecting carrier to forit was certainly within the jurisdiction of ward delayed shipment. the trial court to determine whether the Under the Carmack Amendment (U. S. petitioner had been duly served with process, Comp. St. 88 86042, 8604aa), an initial carrier and, if the court erroneously decided that is liable for failure of the connecting carrier to issue, the petitioner had a complete and use reasonable diligence in forwarding a shipadequate remedy to correct the error by ment over a different route if its own is not

open. appeal. But, while the petitioner concedes that it would have had a remedy by ap

Appeal from Circuit Court, Lonoke County; peal, it nevertheless contends that such

George W. Clark, Judge. remedy is not as efficient as the remedy by certiorari, and hence petitioner is entitled

Action by J. A. Dawson against the Chito the latter remedy the trial court having cago, Rock Island & Pacific Railway Comexceeded its jurisdiction. Petitioner unques- pany.

From a judgment for plaintiff, detionably would be correct in this contention fendant appeals. Affirmed. if, as petitioner assumes, the trial court Thos. S. Buzbee, H. T. Harrison, and C. Le had exceeded its jurisdiction in deciding that Johnson, all of Little Rock, for appellant. petitioner had been served with summons. J. B. Reed and Trimble & Trimble, all of See Stroud v. Conine and Gregs v. Hatcher, Lonoke, for appellee. supra. But the issue here is not whether certiorari would afford a more or less ef McCULLOCH, C. J. This is an action fectual remedy than appeal. The question instituted by appellee against appellant to reis whether the trial court had jurisdiction cover damages alleged to have accrued on to decide that petitioner had been served account of 'delay in the transportation of 11 with summons in the action against it by carloads of cattle which appellant underrespondent. Having concluded that the cir- took, as the initial carrier, to transport from cuit court had jurisdiction to determine that Hazen, Carlisle, and Lonoke stations to Fort issue, we do not reach the interesting ques- Worth, Tex. Damages were alleged arising tion, so ably argued in briefs of counsel, of from the killing and crippling of a certain whether an action can be maintained in number of the cattle of the value of $434.07, this state by a nonresident against a foreign and damages in the sum of $650 for overcorporation doing business in this state, up- charge for feed during the period of unneceson a cause of action of a transitory nature sary delay, and the sum of $1,900 for shrinkarising in a foreign state. Petitioner rested age in weight and depreciation in the grade on its motion to quash the service, and al- of the cattle, and the further sum of $900 on lowed judgment final to be entered against it. account of loss by reason of the decline in

It follows from what we have said that the market during the period of the delay. such judgment must be affirmed. It is so Liability for the sum claimed on account ordered.

of killing and crippling the cattle is con

(248 S.W.) ceded, but Vability for the other items is dis- y of the shipment over the Cotton Belt. Apputed.

pellee testified that he repeatedly made deOn the trial of the cause the court ex- / mand on these agents that such diversion cluded from the jury the question of liabil- be made over that route. There was other ity on account of decline in the market, but proof adduced tending to show that there submitted the issues to the jury as to liabilwas no strike on the Cotton Belt Route and ity for damages from other causes mentioned that the shipment could have been forwarded There was a verdict in favor of appellee in without delay if there had been a diversion the sum of $2,339.50, and an appeal has been in accordance with the request of appellee. duly prosecuted from the judgment. Appel (1) We think there was proof sufficient lant accepted the carloads of cattle at its to show that appellee made demand for a distations at Hazen, Carlisle, and Lonoke and version of the shipment on April 12th, and guve through bills of lading over its own that if his request had been granted the line to North Little Rock, thence over the shipment would have gone through without line of the Missouri Pacific Railroad Com any further delay and the injury would pany to Texarkana, and thence over the line thereby have been averted. of the Texas & Pacific Railway Company The case was submitted to the jury upon to Fort Worth. The bill of lading contained the issue whether or not there could have a stipulation that the carrier should "be ex- been a diversion of the shipment over anothempt from all liability for loss or damage to er route so as to avoid the strike and the person or persons or live stock covered by consequent delay therefrom. this contract caused by mobs, strikes or vio [2] Without questioning the validity of the lence from any source."

contract concerning the exemption from liaThe sole defense made below was that the bility on account of the strike, yet it was delay in the shipments was caused by a the duty of the carrier to exercise reasonable switchmen's strike on the Texas & Pacific diligence to prevent injury by finding anRailway Company, which caused an embargo other route over which safe and undelayed to be laid on all shipments over that road transportation might be had. The carrier for the period during which the delay in had no right, even though exempt from liathese shipments occurred.

bility, to withhold the shipment indefinitely The cattle were received and the move- when other means of transportation of the ment thereof started on the morning of April same character could be found. 10, 1920, and reached North Little Rock

[3] The negligence in failing to divert the about 7 o'clock on the evening of that day, shipment was that of the Missouri Pacific and were delivered to the Missouri Pacific Railroad Company and connecting carrier, Railroad Company. Shortly after the cattle but appellant is responsible under the federwere received at North Little Rock, the al statute for the negligence of the connecting Missouri Pacific received notice of an embargo being placed by the Texas & Pacific Rail-carrier. 34 Stat, 584, c. 3591 (U. S. Comp. st.

88 8601a, 8001aa). kay Company on account of a switchmen's strike, and the cattle were unloaded and

The Carmack Amendment, supra, declares placed in stock pens in North Little Rock the liability of the initial carrier for any and remained there until the evening of loss, damage, or injury to such property April 16th, when the embargo was raised and caused by it or any

common carthe cattle were reloaded and went forward, rier, railroad, or transportation company to reaching destination on April 19, 1920.

which such property may be delivered or It is not contended on behalf of appellee over whose line or lines such property may that the exemption clause in the bill of lad- pass" (section 8604a), and we perceive no ing on account of delay caused by strikes reason why there should not be liability unis invalid, but liability is sought to be im- der this statute on the part of the initial posed on the carrier on the ground that the carrier for negligence of the connecting carshipment could have been diverted at Little rier in failing to adopt available means for Rock to the St. Louis Southwestern Railway forwarding the shipment over another route. Company (Cotton Belt Route) and forwarded It is contended further that the proof through to destination without delay; it fails to establish injury and the extent therebeing claimed that there was no strike on of on account of the delay, but we are of the

opinion that there is enough evidence to warAppellee testified that on April 12, 1920, rant the jury in finding that the delay caused be received a telegram from his broker at damages by reason of shrinkage in weight of Fort Worth informing him that the Cotton the cattle and the additional cost of feed Belt Route was open, and that he at once pre during the period of delay up to the amount septed this telegram to the proper agents of of the award of the jury. the Missouri Pacific Railroad Company at Finding no error in the record, the judgNorth Little Rock and requested diversion ment is affirmed.

that line.

[1] 1. On December 25, 1921, the house and NATIONAL UNION FIRE INS. CO. OF furniture were completely destroyed by fire. PITTSBURGH, Pa., v. WHITTED. Appellee failed to furnish proof of the loss (No. 228.)

within 60 days after the fire, in the manner

provided by the policy. The failure to do so (Supreme Court of Arkansas. March 12,

was interposed by the appellant company as 1923.)

a defense to the suit. Appellee admitted 1. Insurance Amm 668 (14)-Evidence held suffl. that he did not file proof of loss, but claimed cient to go to jury on waiver of proof of loss. that the adjuster for the company waived

Evidence that immediately after fire plain the requirement. The record reflects that tiff notified insurer's local agent and its home immediately after the fire appellee notified office, and listed the household goods destroyed, the local agent of appellant and W. B. Frith, showing the value of each item, and on request cashier of the bank of Wheatley, of his loss, of the adjuster, who viewed the premises short- who in turn notified the company; that at ly after the fire, furnished an itemized state, the suggestion of Mr. Frith appellee made ment of the cost of rebuilding the house, held

an itemized list of the personal property sufficient to go to the jury on question of waiv. destroyed, in a small book, noting the value er of proof of loss, the adjuster having made no objection to the form or manner in which proof of each item, the total amounting to $2,257.of loss was presented.

88; that in response to the notice and within

three weeks after the fire R. E. L. Turner, 2. Witnesses C2821/2-1t is in court's discre- the adjuster of the company, viewed the tion to prevent repetition in taking testimony. place, in the absence of appellee, where the

Where on cross-examination a question was property was destroyed, and left a letter, asked and answered, and substantially the same question was repeated, it was properly exclud requesting him to come to Memphis to dised by the court; it being within court's discre-cuss the question of settlement; that during tion to prevent unnecessary repetition in taking the meeting in Memphis the adjuster asked testimony.

him if he had an itemized list of the prop

erty, to which he replied that he did, and Appeal from Circuit Court, Lee County; showed him the book containing the list J. M. Jackson, Judge.

theretofore prepared; that the adjuster said

the company could not be expected to pay Action by C. L. Whitted against the Na- the price of new goods for old, to which aptional Union Fire Insurance Company of pellee responded that he did not expect it Pittsburgh, Pa. From a judgment for the to do so, for the loss was three times as plaintiff, defendant appeals. Affirmed.

much as the property was insured for; that Prewitt Semmes, of Memphis, Tenn., for the adjuster then instructed appellee to furappellant.

nish him with an itemized statement of Bogle & Sharp, of Brinkley, for appellee. what it would cost to rebuild the house,

which was done, but made no further request HUMPHREYS, J. This is a suit to re-concerning the list of personal property cover $3,000 on a fire insurance policy issued shown him. We think the conversation and August 27, 1920, by appellant company to conduct of the adjuster led appellee to believe appellee, indemnifying him for a period of that no further formality would be required three years against loss by fire to his dwel- concerning the proof of loss. A complete ling in the sum of $2,000, and to his house list of the personal property destroyed was hold and kitchen furniture in the sum of shown the adjuster, and no objection was $1,000. Appellant filed an answer denying made as to form and manner in which it liability. The cause proceeded to a hearing was presented. Appellee was not asked to upon the pleadings and testimony, at the verify it by oath. In fact, he was led to be conclusion of which each party asked a di- lieve it was satisfactory by the adjuster's rected verdict. The court thereupon direct suggestion to make up an itemized statement ed the jury to return a verdict in favor of of the cost necessary to rebuild the house. appellee for $3,000, with interest at 6 per In reference to the personal property appelcent. from September 25, 1921, and a penalty lee had done what he intended and thought of 12 per cent., which was done. The judg- was a satisfactory compliance with the rement was rendered in accordance with the quirements of his policy in respect to the verdict, from which an appeal has been duly proof of loss, and the adjuster should have prosecuted to this court.

notified him of any objection thereto. SiAppellant contends for a reversal of the lence on his part, under the circumstances, judgment upon two grounds: First, the in- was calculated to mislead appellee to his sufliciency of the evidence to go to the jury disadvantage, and constituted a waiver of upon the waiver of the proof of loss; second, additional proof of loss. Gould y. Dwellingrefusal of the court to permit questions as house Ins. Co., 134 Pa. 570, 19 Atl. 793, 19 to the cost and date of the purchase of the Am. St. Rep. 717; Hartford Fire Ins. Co. v. sereral items of the personal property. Enoch, 79 Ark. 475, 96 S. W. 393; Business

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(248 S.W.) Men's Accident Ass'n v. Cowden, 131 Ark. Suit by the Atkinson Improvement Com419, 199 S. W. 108.

pany against I. H. Nakdimen and others. [2] 2. In answer to an interrogatory of From decree favorable to defendant, plaincounsel for appellant, on cross-examination, tiffs appeal. Decree modified. appellee made the following answer:

Hill & Fitzhugh, of Ft. Smith, for appel"I could not tell the cost price of the articles lants. on the list but the values set down on the list Warner, Hardin & Warner and James B. are about the market values. I placed the McDonough, all of Ft. Smith, for appellee. value on the list. I cannot tell how old the majority of the property was, some of it was 20-odd years old."

SMITH, J. This is the second appeal in

this cause, and reference is made to the opinAfter this information had been elicited, ion on the former appeal for a full statethe same question, in substance, was repeat- ment of the facts and issues. Nakdimen v. ed, and, over the objection of appellant, it Atkinson Improvement Co., 149 Ark. 448, 233 was excluded by the court. In the exercise S. W. 694. of a sound discretion, the court may prevent The litigation arose out of the interpretaunnecessary repetitions in taking testimony, tion of a lease which the parties hereto had and we are unable to say that the court's entered into, and that contract, which was discretion was abused in sustaining the ob- in writing, is set out in full in the former jection to the second question touching the opinion. The facts essential to an undersame subject-matter.

standing of the issues presented on this apNo error appearing, the judgment is at. peal may be briefly summarized as follows: firmed.

The Atkinson Improvement Company, hereinafter referred to, for brevity, as the company, owned a building in the city of Ft.

Smith, and Nakdimen owned a lot adjacent ATKINSON IMPROVEMENT CO. V. NAK

thereto, and, desiring to erect a building on DIMEN et al. (No. 207.)

his. lot, he entered into the contract referred

to above, whereby the Nakdimen building (Supreme Court of Arkansas. March 5, 1923. should be so constructed that the tenants of Rebearing Denied March 26, 1923.) the two buildings might make common use of

the lobby, stairway and hallways of the com1. Appeal and error m1097(!), 1195(1) Opinion on former appear is law of case, pany's building, and of the elevator in that binding on parties and appellate court. building, and also of the elevator which was

An opinion on a former appeal of a particu- to be installed in the Nakdimen building. lar case is binding on all the parties on re- Nakdimen sold an interest in the building to trial and the Supreme Court on subsequent ap- certain associates, who were made parties peal.

to the former case, and we use his name to 2. Appeal and error om 1096 (1)-Opinion on include his associates. former appeal of same case must be con Under the contract as construed in the strued in light of facts there stated.

former opinion, the original lease covered a The opinion on a former appeal of a par period of 10 years, with the reciprocal priviticular case must be construed in the light of lege of a renewal for another 10-year period. facts there stated and the directions contained therein.

Nakdimen construed the contract as being a

lease for a 10-year period only, and at the ex3. Landlord and tenant 86(4) Held for court to determine value of elevator service; at an end, and refused to operate the eleva

piration of that time declared the contract matters to be considered stated.

tor in his building. The company took the Under a lease of a building to the owners of a building to be erected adjacent to it of position that the contract was one in perthe right to use the elevator, stairway, and petuity, and sought to obtain a decree comlobby, which provided for a stipulated monthly pelling its specific performance by Nakdimen. rent for a term of ten years, and then for a We held that the contract was not one which renewal and an arbitration as to the rental the court would compel the parties to spepayable thereafter, where the owners of the cifically perform; but we also held that, as newer building at the end of the ten-year the contract had not expired, damages would period refused to arbitrate, held, that the court be awarded for its breach and the court should determine the rental payable for the next like period, taking into consideration the would fix the rental value, as the parties whole premises, including the elevator, and had failed to do so, under a provision of the in doing so should give weight to the value de contract quoted later. termined by the parties themselves in their

The lease contract provided that Nakdifirst agreement, though not allow it to control. men should pay the company $25 per month

during the entire 10-year period as rent for Appeal from Sebastian Chancery Court; the privilege and concession there granted. J. V. Bourland, Chancellor.

It also provided:
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indees

248 S.W.--36

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"That, at the expiration of said period of 10 | sion of the questions presented on this apyears, the rental to be paid by the party of the peal depends upon the interpretation of the first part to the party of the second part for former opinion in which we construed the the concession and privilege herein granted, as contract and gave directions to the trial herein set out, shall be fixed by a board of ar

court as to the rights of the parties thereunbitrators, three in number, one to be named

der. by each of the parties hereto, and the third to be selected by the two so named by the parties

[2, 3] The opinion is, of course, to be conhereto, and that the award of any two of said strued in the light of the facts there stated arbitrators shall be final and conclusive upon and of the directions there contained. After the parties hereto."

holding that the court below had erred in

granting specific performance of the conThe company alleged in its complaint that tract requiring the Nakdimen elevator to be Nakdimen had refused to name an arbitra- the cause it would be the duty of the court

operated, we said that upon the remand of tor as required by the section of the contract quoted, and was refusing to operate the to settle the damages which resulted to the

company from the breach of the contract by elevator in his building, and there was a prayer that the court fix the rental value Nakdimen. We also said that, in fixing the of the premises and damages for failure to damages to be allowed the company

for the

breach of the contract by Nakdimen, it would operate the elevator. The case presented to us, as we viewed it, fix the rental value of the "premises.” The

be necessary for the court to consider and was that the parties were making joint use of the premises as the contract contemplated court below bad fixed the rental value at they should do, but the provision of the $25 per month; but we directed a new findcontract determining the rent to be paid by ing to be made on that question and gave Nakdimen had expired by the limitation

both parties permission to take additional of the contract, and Nakdimen had failed to testimony, and this privilege was very free comply with the stipulation in regard to the ly used, as we have an additional record as appointment of arbitrators, to determine that

large as the original record. question, and, in addition, he was also refus- tion to the court below:

The former opinion contained this direcing to operate the elevator in his building as the contract required him to do.

“It will be the duty of the court upon the reAt the time of the rendition of our opinion mand of the present case to fix the amount of on the former appeal, it appears that Nakdi- damages suffered by appellee (the company) by men, after having suspended the operation the breach of the contract upon the part of of his elevator from September, 1920, to appellants (Nakdimen], and, inasmuch as it will April, 1921, had resumed its operation under be necessary for the court to know the rental an agreement that he should not be preju- ten years in fixing the damages, it will be nec

value of the premises for the renewal period of diced thereby in the assertion of what he re-essary for the court to fix the rental value for garded as his rights and obligations under the elevator service for the reason that apthe contract. We were not advised that the pellants refused to proceed under the arbitraelevator was being operated, and as it was tion clause looking to that end, as above held that the court would not decree specific stated.” performance of the requirement that Nakdimen operate his elevator, we directed the An elaborate opinion was prepared by the court to find damages for this breach of the chancellor, and, after making it perfectly contract. The court made a finding assess- plain that he had taken into account only the ing the damages for failing to operate the rental value of the stairway and lobby of the elevator during the time its operation was company building, he fixed the rental value suspended; and neither party complains of thereof at $25 per month. It appears from this finding.

the opinion of the court below that he The court below interpreted our opinion on reached this conclusion because, as he interthe former appeal as directing him to find preted the contract, rent was to be paid only the rental value of the stairway and lobby of on the stairway and lobby, and he was evithe company building, and in determining dently controlled, in a large measure, in fix. the rental value the court took into account ing the rental value, by the fact that the nothing else. Much testimony was offered of parties, when contracting in regard to the the rental value of the hallways and elevator rental for a period of ten years, fixed $25 in the company building, but the court re- per month as the rental to be paid. fused to take any of this testimony into We think the court below did not correctaccount, for the reason, as stated, that the ly interpret the opinion. Our direction was court was of the opinion that the rent was to not to fix the rental value of the stairway be fixed only on the stairway and lobby. and lobby only but “to consider and fix the

[1] The opinion on the former appeal, in rental value of the premises." It is true that which the contract was construed, is the law we gave no specific direction to take into of the case, and is binding on all parties, and account the elevator service rendered by ourselves as well. We need not, therefore, the company building in fixing the rent. One

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