Straub v. Missouri Pacific Railroad Company

Humphreys, J. This is an appeal from a judgment rendered in accordance with a directed verdict in the circuit court of Phillips County dismissing appellant’s complaint against appellee. The purpose of the suit was to recover $1,215, the value of a car load of cottonseed alleged to have been delivered on the 12th day of October, 1923, by appellants to appellee for transportation from the gin of appellants at Helena crossing to the New South Oil Company at Helena, which was destroyed by fire before the car was actually moved by appellee. Two defenses were interposed to the alleged cause of action by appellee: first, that it had not received the seed for shipment at the time it was destroyed by fire; and, second, that it was exempt from liability on account of fire under a paragraph in the contract which the predecessors of appellants and appellee had entered .into when the industrial track was constructed from appellee’s main line to the cotton gin of appellants. Appellee has interposed ¡and argued on appeal two other defenses in support of the judgment, which we understand were not presented as issues by the pleadings or testimony in the trial court. The new issues contended for in support of the judgment are that appellee was not a public carrier of the cotton seed for appellants but a private carrier, and that the track upon which the alleged shipment was originated was a private and not a public track. As these issues were not raised below, vwe cannot consider them on appeal. Plummer v. Reeves, 83 Ark. 10; White v. Moffett, 108 Ark. 490. Reverting to the issues upon which the case was. tried below, according to our understanding of the records, we will first discuss whether or not the undisputed testimony showed that the shipment of seed was delivered by appellee to appellants in accordance with the custom pre-. vailing between them with reference to shipments from the gin. The trial court ruled that there was a delivery; and, since the ruling was favorable to appellants, it would be unnecessary to discuss this issue on appeal if the court had not erroneously instructed a verdict on another issue. Appellee insists that the ruling of the court in this respect was erroneous because the shipping order was never signed by its agent. The undisputed facts bearing upon the custom with reference to shipments from the gin are 'as follows: The parties agreed, on account of the distance of the gin from the depot, that appellee would place a box near the scalehouse at the gin to receive the bills of lading, which appellants were permitted to fill out after placing a car for shipment on the industrial track. In keeping with this agreement, appellee put up the box and furnished appellants with a book containing cross-town billing receipts to make out in duplicate, and place in the box when cars were loaded for shipment. The cross-town billing receipts did not specify that appellants should notify the company in writing that a car was ready for shipment or that it would not be accepted until signed by an agent of appellee. A blank space appeared on the receipt for the engine foreman to sign the hour at which he moved the car, but appellee’s witnesses testified that they were signed in duplicate by the engine foreman so that he might use one as reference for the destination of the car, and that the other might be kept as a record by appellee showing the shipment. The custom in carrying out the agreement was for appellants to order a car; and, after same had been set by appellee and loaded with products from the gin, they would fill out the receipts, place the same in the box, and notify the company orally that the car was ready to move. Nothing else was to be done by appellants in order to obtain the services of appellee. In this instance, after the car had been set and loaded, appellants notified the engine foreman in person that' the car was ready for shipment, and he agreed to move it that night. Before it was moved, the gin and car were burned. Appellants did all that was required of them, according to custom, to constitute a delivery of the car, and the notice to, and the agreement of the engine foreman to move the car that night, constituted an acceptance of it by appellee for shipment. The receipt neither required written notice nor the signature of an agent of appellee to constitute an acceptance of the car for shipment. The facts bring the case within the rule announced in the cases of Railroad Company v. Murphy, 60 Ark. 333; Pine Bluff & Arkansas River Railroad Co. v. McKenzie, 75 Ark. 100; Matthews & Hood v. St. L. I. M. & S. R. Co., 123 Ark. 365. Appellants contend for a reversal of the judgment upon the alleged ground that the court erred in absolving appellee from liability under the eleventh paragraph of the contract between the predecessors of appellants and appellee, which is as follows: “The said second party hereby releases and agrees to indemnify and hold the railway company harmless from and against all liability or claim for loss and damage by fire, which may happen upon or be done to or upon the buildings, premises and property of the party of the second part, or to the property of any other persons or corporations, now or hereafter, on the premises of the party of the second part, and whether inside or outside of said buildings, caused by fire, sparks or burning coals from any locomotive when operated upon said track, or by fire otherwise happening howsoever.” This provision in the contract exempting appellee from liability on account of fire is a limitation upon its common-law liability, and is void under § 843 of Crawford & Moses’ Digest, the shipment being controlled by the laws of this State. It was a local shipment. Mo. Pac. Rd. Co. v. Porter, 168 Ark. 22. The contention of appellee is that the contract does not abridge, modify, limit, or abrogate the common-law duty of appellee, and that it is not in conflict with § 843 of the Digest. We agree with the contention of appellants, for a common carrier cannot change its public character by private contract with shippers to haul freight over its tracks from one industrial track to another industrial track in this State. It is immaterial whether the industrial tracks are owned by .the shippers or by the railroad company if, in delivering the shipment, it is necessary to pass over tracks which do belong to the railroad company. As we understand the facts in this case, the shipment wias across town on tracks belonging to the railroad company which it had accepted for shipment at a point on an industrial track to be delivered at a point pn another industrial track, each of which intersected appellee’s tracks. Since there was a completed delivery óf the car of cotton seed for shipment by ¡appellants to appéllee, and since paragraph eleven in the contract is void, the judgment dismissing appellants’ complaint is reversed, and the cause is remanded with directions to the circuit court to render a judgment in favor of. appellants for the' value of the seed. Justices Wood and Smith dissent.