Midland Valley Railroad v. Hale

McCulloch, J. Appellees, J. E. Hale & Company instituted suit before a justice of the peace against appellant railroad company to recover on an account in the sum of $95.58 for “damages on merchandise.” Judgment was rendered in their favor, and the company appealed to the circuit court. The court there sustained a motion to make the complaint more definite and certain; and appellees filed a formal complaint, alleging that on or about October I, 1905, appellant received from a connecting carrier a consignment of merchandise shipped by the Ferguson-McKinney Dry Goods Company, at St. Louis, Mo., over the Chicago, Burlington & Quincy Railroad Company and connecting carriers, to appellee at Hackett City, Arkansas, as show-n by bill of lading exhibited with the complaint, which was issued by the initial carrier, and “that through carelessness and negligence of defendant’s agents and employees said shipment of merchandise was exposed to the weather and became wet and greatly damaged, to these plaintiffs.’ damage in the sum of $94.58, wherefore plaintiffs pray judgment,” etc. Appellant filed its answer, denying every allegation of the complaint and alleging that the damage, if any, occurred while the merchandise was in the hands of a connecting carrier, and not on appellant’s line. During the progress of the trial appellees were allowed to amend their complaint so as to conform to the evidence by stating the amount of damage at the sum of one hundred and fifty dollars. This was done over appellant’s objection. Appellees recovered judgment for the full amount claimed. It is urged, in the first place, that the circuit court lost jurisdiction of the case on account of the amendment raising the amount sued for to the sum of one hundred and fifty dollars. The recent decision of this court in the case of St. Louis & N. A. Rd. Co. v. Wilson, 85 Ark. 257, is conclusive of this question. The allegations of the complaint were sufficient to support an action ex contractu. Appellant did not issue the bill of lading sued on, as it was not the initial carrier, but an 'implied contract between it and the consignee arose by its acceptance of the goods for transportation from the initial or connecting carrier. A suit could, in case of loss or damagb, be maintained either on the implied contract or for the tort. This is a suit on contract, and the court had jurisdiction of the amount mentioned in the amended complaint. The undisputed evidence showed that the goods were in a damaged condition when they arrived at the point of destination in appellant’s possession. No attempt was made to prove where the damage actually occurred, and the court gave a peremptory instruction to the jury to return a verdict in favor of the plaintiff for whatever they found the amount of the damage -to be. This was correct, as there was a presumption, in the absence of other proof, that the last carrier was the negligent one. Kansas City So. Ry. Co. v. Embry, 76 Ark. 589. Error of the court is also assigned in its refusal to grant appellant a continuance .until the succeeding term, but no abuse of 'the court’s discretion is shown in this ruling. Judgment affirmed.