the decision on that issue raised by the motion to quash the service, if erroneous, could and should have been corrected by appeal. CHICAGO, R. I. & P. R. CO. v. DAWSON, (No. 216.) (Supreme Court of Arkansas. March 12, 1923.) 228 (5)-Evidence held to show demand to divert delayed shipment to another route, and that, if granted, injury would not have resulted. Evidence held sufficient to establish a demand on the part of a shipper that a shipment of cattle, delayed because of a strike, be diverted to another route, and that, if the been no further delay and injury would not request had been granted, there would have have resulted. [1] The doctrine is well established by numerous decisions of this court "that a writ of certiorari should not be used in any case where there has been a right of ap-1. Carriers peal unless the opportunity of appealing has been lost without the fault of petitioner," or unless the court in the proceedings, which the petitioner seeks to have reviewed and quashed by certiorari, has acted without, or in excess of, its jurisdiction. Lamb & Rhodes v. Howton, 131 Ark. 211, 198 S. W. 521; Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, 214 S. W. 49, and other cases cited in Cumulative Supp. Crawford's Ark. Dig. 1922, p. 162; Stroud v. Conine, 114 Ark. 304-309, 169 S. W. 959; Carolan v. Carolan, 47 Ark. 511, 2 S. W. 105; Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007, 27 L. R. A. (N. S.) 138, 21 Ann. Cas. 982; Griffin v. Boswell, 124 Ark. 234, 187 S. W. 165, and numerous cases cited in 1 Crawford's Digest, p. 908 (Certiorari). 2. Carriers 218(6)-Duty to use reasonable diligence to find open route for delayed shipments, though contract exempts from liability. It is the duty of a carrier to use reasonable diligence to prevent injury to delayed shipments by finding an open route, and may not unreasonably delay, though its contract exempts it from liability. 3. Carriers 219(4)—Initial carrier held liable for failure of connecting carrier to forward delayed shipment. Under the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa), an initial carrier is liable for failure of the connecting carrier to use reasonable diligence in forwarding a shipment over a different route if its own is not open. Appeal from Circuit Court, Lonoke County; George W. Clark, Judge. Action by J. A. Dawson against the Chicago, Rock Island & Pacific Railway ComFrom a judgment for plaintiff, defendant appeals. Affirmed. Thos. S. Buzbee, H. T. Harrison, and C. L Johnson, all of Little Rock, for appellant. J. B. Reed and Trimble & Trimble, all of Lonoke, for appellee. [2] After the petitioner entered its special appearance and moved to quash service, it was certainly within the jurisdiction of the trial court to determine whether the petitioner had been duly served with process, and, if the court erroneously decided that issue, the petitioner had a complete and adequate remedy to correct the error by appeal. But, while the petitioner concedes that it would have had a remedy by appeal, it nevertheless contends that such remedy is not as efficient as the remedy by certiorari, and hence petitioner is entitled to the latter remedy the trial court having exceeded its jurisdiction. Petitioner unques-pany. tionably would be correct in this contention if, as petitioner assumes, the trial court had exceeded its jurisdiction in deciding that petitioner had been served with summons. See Stroud v. Conine and Gregg v. Hatcher, supra. But the issue here is not whether certiorari would afford a more or less effectual remedy than appeal. The question is whether the trial court had jurisdiction to decide that petitioner had been served with summons in the action against it by respondent. Having concluded that the circuit court had jurisdiction to determine that issue, we do not reach the interesting question, so ably argued in briefs of counsel, of whether an action can be maintained in this state by a nonresident against a foreign corporation doing business in this state, upon a cause of action of a transitory nature arising in a foreign state. Petitioner rested on its motion to quash the service, and allowed judgment final to be entered against it. It follows from what we have said that such judgment must be affirmed. It is so ordered. MCCULLOCH, C. J. This is an action instituted by appellee against appellant to recover damages alleged to have accrued on account of delay in the transportation of 11 carloads of cattle which appellant undertook, as the initial carrier, to transport from Hazen, Carlisle, and Lonoke stations to Fort Worth, Tex. Damages were alleged arising from the killing and crippling of a certain number of the cattle of the value of $434.07, and damages in the sum of $650 for overcharge for feed during the period of unnecessary delay, and the sum of $1,900 for shrinkage in weight and depreciation in the grade of the cattle, and the further sum of $900 on account of loss by reason of the decline in the market during the period of the delay. Liability for the sum claimed on account of killing and crippling the cattle is con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) ceded, but liability for the other items is dis-1 of the shipment over the Cotton Belt. Apputed. pellee testified that he repeatedly made demand on these agents that such diversion be made over that route. There was other proof adduced tending to show that there was no strike on the Cotton Belt Route and that the shipment could have been forwarded without delay if there had been a diversion in accordance with the request of appellee. [1] We think there was proof sufficient to show that appellee made demand for a diversion of the shipment on April 12th, and that if his request had been granted the shipment would have gone through without any further delay and the injury would thereby have been averted. On the trial of the cause the court excluded from the jury the question of liability on account of decline in the market, but submitted the issues to the jury as to liability for damages from other causes mentioned. There was a verdict in favor of appellee in the sum of $2,339.50, and an appeal has been duly prosecuted from the judgment. Appellant accepted the carloads of cattle at its stations at Hazen, Carlisle, and Lonoke and gave through bills of lading over its own line to North Little Rock, thence over the line of the Missouri Pacific Railroad Company to Texarkana, and thence over the line 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 violence from any source.' The sole defense made below was that the delay in the shipments was caused by a switchmen's strike on the Texas & Pacific Railway Company, which caused an embargo to be laid on all shipments over that road for the period during which the delay in these shipments occurred. The cattle were received and the movement thereof started on the morning of April 10, 1920, and reached North Little Rock about 7 o'clock on the evening of that day, and were delivered to the Missouri Pacific Railroad Company. Shortly after the cattle were received at North Little Rock, the Missouri Pacific received notice of an embargo being placed by the Texas & Pacific Railway Company on account of a switchmen's strike, and the cattle were unloaded and placed in stock pens in North Little Rock and remained there until the evening of April 16th, when the embargo was raised and the cattle were reloaded and went forward, reaching destination on April 19, 1920. [2] Without questioning the validity of the contract concerning the exemption from liability on account of the strike, yet it was the duty of the carrier to exercise reasonable diligence to prevent injury by finding another route over which safe and undelayed transportation might be had. The carrier had no right, even though exempt from liability, to withhold the shipment indefinitely when other means of transportation of the same character could be found.. [3] The negligence in failing to divert the shipment was that of the Missouri Pacific Railroad Company and connecting carrier, but appellant is responsible under the federal statute for the negligence of the connecting carrier. 34 Stat. 584, c. 3591 (U. S. Comp. St. §§ 8604a, 8604aa). The Carmack Amendment, supra, declares the liability of the initial carrier for any "loss, damage, or injury to such property caused by it or any common car rier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may reason why there should not be liability under this statute on the part of the initial carrier for negligence of the connecting carrier in failing to adopt available means for forwarding the shipment over another route. It is not contended on behalf of appellee that the exemption clause in the bill of lad-pass" (section 8604a), and we perceive no ing on account of delay caused by strikes is invalid, but liability is sought to be imposed on the carrier on the ground that the shipment could have been diverted at Little Rock to the St. Louis Southwestern Railway Company (Cotton Belt Route) and forwarded through to destination without delay; it being claimed that there was no strike on that line. Appellee testified that on April 12, 1920, he received a telegram from his broker at Fort Worth informing him that the Cotton Belt Route was open, and that he at once presented this telegram to the proper agents of the Missouri Pacific Railroad Company at North Little Rock and requested diversion It is contended further that the proof fails to establish injury and the extent thereof on account of the delay, but we are of the opinion that there is enough evidence to warrant the jury in finding that the delay caused damages by reason of shrinkage in weight of the cattle and the additional cost of feed during the period of delay up to the amount of the award of the jury. Finding no error in the record, the judgment is affirmed. NATIONAL UNION FIRE INS. CO. OF (Supreme Court of Arkansas. March 12, 1923.) 1. Insurance 668 (14)—Evidence held suffi. clent to go to jury on waiver of proof of loss. Evidence that immediately after fire plaintiff notified insurer's local agent and its home office, and listed the household goods destroyed, showing the value of each item, and on request of the adjuster, who viewed the premises shortly after the fire, furnished an itemized statement of the cost of rebuilding the house, held sufficient to go to the jury on question of waiver of proof of loss, the adjuster having made no objection to the form or manner in which proof of loss was presented. 2. Witnesses 2822-It is in court's discretion to prevent repetition in taking testimony. Where on cross-examination a question was asked and answered, and substantially the same question was repeated, it was properly excluded by the court; it being within court's discretion to prevent unnecessary repetition in taking testimony. [1] 1. On December 25, 1921, the house and furniture were completely destroyed by fire. Appellee failed to furnish proof of the loss within 60 days after the fire, in the manner provided by the policy. The failure to do so was interposed by the appellant company as a defense to the suit. Appellee admitted that he did not file proof of loss, but claimed that the adjuster for the company waived the requirement. The record reflects that immediately after the fire appellee notified the local agent of appellant and W. B. Frith, cashier of the bank of Wheatley, of his loss, who in turn notified the company; that at the suggestion of Mr. Frith appellee made an itemized list of the personal property destroyed, in a small book, noting the value of each item, the total amounting to $2,257.88; that in response to the notice and within three weeks after the fire R. E. L. Turner, the adjuster of the company, viewed the place, in the absence of appellee, where the property was destroyed, and left a letter, requesting him to come to Memphis to discuss the question of settlement; that during the meeting in Memphis the adjuster asked him if he had an itemized list of the property, to which he replied that he did, and showed him the book containing the list Appeal from Circuit Court, Lee County; theretofore prepared; that the adjuster said J. M. Jackson, Judge. the company could not be expected to pay the price of new goods for old, to which appellee responded that he did not expect it to do so, for the loss was three times as much as the property was insured for; that Action by C. L. Whitted against the National Union Fire Insurance Company of Pittsburgh, Pa. From a judgment for the plaintiff, defendant appeals. Affirmed. 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. HUMPHREYS, J. This is a suit to recover $3,000 on a fire insurance policy issued August 27, 1920, by appellant company to appellee, indemnifying him for a period of three years against loss by fire to his dwelling in the sum of $2,000, and to his house hold and kitchen furniture in the sum of $1,000. Appellant filed an answer denying liability. The cause proceeded to a hearing upon the pleadings and testimony, at the conclusion of which each party asked a directed verdict. The court thereupon directed the jury to return a verdict in favor of appellee for $3,000, with interest at 6 per cent. from September 25, 1921, and a penalty of 12 per cent., which was done. The judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court. Appellant contends for a reversal of the judgment upon two grounds: First, the insufficiency of the evidence to go to the jury upon the waiver of the proof of loss; second, refusal of the court to permit questions as to the cost and date of the purchase of the several items of the personal property. which was done, but made no further request concerning the list of personal property shown him. We think the conversation and conduct of the adjuster led appellee to believe that no further formality would be required concerning the proof of loss. A complete list of the personal property destroyed was shown the adjuster, and no objection was made as to form and manner in which it was presented. Appellee was not asked to verify it by oath. In fact, he was led to believe it was satisfactory by the adjuster's suggestion to make up an itemized statement of the cost necessary to rebuild the house. In reference to the personal property appellee had done what he intended and thought was a satisfactory compliance with the requirements of his policy in respect to the proof of loss, and the adjuster should have notified him of any objection thereto. Silence on his part, under the circumstances, was calculated to mislead appellee to his disadvantage, and constituted a waiver of additional proof of loss. Gould v. Dwellinghouse Ins. Co., 134 Pa. 570, 19 Atl. 793, 19 Am. St. Rep. 717; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S. W. 393; Business For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) Men's Accident Ass'n v. Cowden, 131 Ark. 419, 199 S. W. 108. [2] 2. In answer to an interrogatory of counsel for appellant, on cross-examination, appellee made the following answer: "I could not tell the cost price of the articles on the list but the values set down on the list are about the market values. I placed the value on the list. I cannot tell how old the majority of the property was, some of it was 20-odd years old." After this information had been elicited, the same question, in substance, was repeated, and, over the objection of appellant, it was excluded by the court. In the exercise of a sound discretion, the court may prevent unnecessary repetitions in taking testimony, and we are unable to say that the court's discretion was abused in sustaining the objection to the second question touching the same subject-matter. No error appearing, the judgment is af firmed. ATKINSON IMPROVEMENT CO. v. NAK- (Supreme Court of Arkansas. March 5, 1923. Rehearing Denied March 26, 1923.) 1. Appeal and error 1097(1), 1195 (1) Opinion on former appear is law of case, binding on parties and appellate court. An opinion on a former appeal of a particular case is binding on all the parties on retrial and the Supreme Court on subsequent appeal. 2. Appeal and error 1096(1)-Opinion on former appeal of same case must be construed in light of facts there stated. The opinion on a former appeal of a particular case must be construed in the light of facts there stated and the directions contained therein. 3. Landlord and tenant 86(4) Held for court to determine value of elevator service; matters to be considered stated. Under a lease of a building to the owners of a building to be erected adjacent to it of the right to use the elevator, stairway, and lobby, which provided for a stipulated monthly rent for a term of ten years, and then for a renewal and an arbitration as to the rental payable thereafter, where the owners of the newer building at the end of the ten-year period refused to arbitrate, held, that the court should determine the rental payable for the next like period, taking into consideration the whole premises, including the elevator, and in doing so should give weight to the value determined by the parties themselves in their first agreement, though not allow it to control. Suit by the Atkinson Improvement Company against I. H. Nakdimen and others. From decree favorable to defendant, plaintiffs appeal. Decree modified. Hill & Fitzhugh, of Ft. Smith, for appellants. Warner, Hardin & Warner and James B. McDonough, all of Ft. Smith, for appellee. SMITH, J. This is the second appeal in this cause, and reference is made to the opinion on the former appeal for a full statement of the facts and issues. Nakdimen v. Atkinson Improvement Co., 149 Ark. 448, 233 S. W. 694. The litigation arose out of the interpretation of a lease which the parties hereto had entered into, and that contract, which was in writing, is set out in full in the former opinion. The facts essential to an understanding of the issues presented on this appeal may be briefly summarized as follows: 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 thereto, and, desiring to erect a building on his. lot, he entered into the contract referred to above, whereby the Nakdimen building should be so constructed that the tenants of the two buildings might make common use of the lobby, stairway and hallways of the company's building, and of the elevator in that building, and also of the elevator which was to be installed in the Nakdimen building. Nakdimen sold an interest in the building to certain associates, who were made parties to the former case, and we use his name to include his associates. Under the contract as construed in the former opinion, the original lease covered a period of 10 years, with the reciprocal privilege of a renewal for another 10-year period. Nakdimen construed the contract as being a lease for a 10-year period only, and at the expiration of that time declared the contract at an end, and refused to operate the elevator in his building. The company took the position that the contract was one in perpetuity, and sought to obtain a decree compelling its specific performance by Nakdimen. We held that the contract was not one which the court would compel the parties to specifically perform; but we also held that, as the contract had not expired, damages would be awarded for its breach and the court would fix the rental value, as the parties had failed to do so, under a provision of the contract quoted later. The lease contract provided that Nakdimen 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 Indexes 248 S.W.-36 "That, at the expiration of said period of 10 years, the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein set out, shall be fixed by a board of arbitrators, three in number, one to be named by each of the parties hereto, and the third to be selected by the two so named by the parties hereto, and that the award of any two of said arbitrators shall be final and conclusive upon the parties hereto." | sion of the questions presented on this appeal depends upon the interpretation of the former opinion in which we construed the contract and gave directions to the trial court as to the rights of the parties thereunder. [2, 3] The opinion is, of course, to be construed in the light of the facts there stated and of the directions there contained. After holding that the court below had erred in granting specific performance of the con The company alleged in its complaint that tract requiring the Nakdimen elevator to be Nakdimen had refused to name an arbitra-operated, we said that upon the remand of the cause it would be the duty of the court to settle the damages which resulted to the company from the breach of the contract by Nakdimen. We also said that, in fixing the tor as required by the section of the contract quoted, and was refusing to operate the elevator in his building, and there was a prayer that the court fix the rental value of the premises and damages for failure to operate the elevator. damages to be allowed the company for the breach of the contract by Nakdimen, it would fix the rental value of the "premises." The be necessary for the court to consider and court below had fixed the rental value at The case presented to us, as we viewed it, was that the parties were making joint use of the premises as the contract contemplated $25 per month; but we directed a new findthey should do, but the provision of the contract 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 freecomply with the stipulation in regard to they used, as we have an additional record as large as the original record. appointment of arbitrators, to determine that question, and, in addition, he was also refusing to operate the elevator in his building as the contract required him to do. At the time of the rendition of our opinion on the former appeal, it appears that Nakdimen, after having suspended the operation of his elevator from September, 1920, to April, 1921, had resumed its operation under an agreement that he should not be preju The former opinion contained this direction to the court below: "It will be the duty of the court upon the remand of the present case to fix the amount of damages suffered by appellee [the company] by the breach of the contract upon the part of appellants [Nakdimen], and, inasmuch as it will be necessary for the court to know the rental value of the premises for the renewal period of ten years in fixing the damages, it will be nec essary for the court to fix the rental value for the elevator service for the reason that appellants refused to proceed under the arbitration clause looking to that end, as above stated." diced thereby in the assertion of what he regarded as his rights and obligations under the contract. We were not advised that the elevator was being operated, and as it was held that the court would not decree specific performance of the requirement that Nakdimen operate his elevator, we directed the court to find damages for this breach of the contract. The court made a finding assess-plain that he had taken into account only the ing the damages for failing to operate the elevator during the time its operation was suspended; and neither party complains of this finding. The court below interpreted our opinion on the former appeal as directing him to find the rental value of the stairway and lobby of the company building, and in determining the rental value the court took into account nothing else. Much testimony was offered of the rental value of the hallways and elevator in the company building, but the court refused to take any of this testimony into account, for the reason, as stated, that the court was of the opinion that the rent was to be fixed only on the stairway and lobby. [1] The opinion on the former appeal, in which the contract was construed, is the law of the case, and is binding on all parties, and ourselves as well. We need not, therefore, inquire what the contract meant, as the deci An elaborate opinion was prepared by the chancellor, and, after making it perfectly rental value of the stairway and lobby of the company building, he fixed the rental value thereof at $25 per month. It appears from the opinion of the court below that he reached this conclusion because, as he interpreted the contract, rent was to be paid only on the stairway and lobby, and he was evidently controlled, in a large measure, in fixing the rental value, by the fact that the parties, when contracting in regard to the rental for a period of ten years, fixed $25 per month as the rental to be paid. We think the court below did not correctly interpret the opinion. Our direction was not to fix the rental value of the stairway and lobby only but "to consider and fix the rental value of the premises." It is true that we gave no specific direction to take into account the elevator service rendered by the company building in fixing the rent. One reason for this omission is that the elevator |