1092 MELLON V. STEIN. [171 • MELLON V. STEIN. • Opinion delivered November 1, 1926. CARRIERS: ---NEGLIGENCE IN TRANSPORTING GOODS-JURY QUESTION. hi • an action for goods lost in transportation, evidence held to make it a* jury question whether the carrier was negligent in causing the goods to be transported to destination marked on package, instead of to destination marked . on the bill of lading, and whether the shipper was damaged, and hence it was error to • direct a . verdict for the shipper. 2. CARRIERS-NEGLIGENCE IN MAKING SHIPMENT-JURY QUESTION.- hi an action for loss of goods shipped, testimony by the plaintiff's shipping clerk that he was not sure that he had not misdirected the package, held to make it a jury question whether he had not misdirected the package. Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge ; reversed. • Thos. B. Pryor, W.. L. Curtis and Vincent M. Miles, for appellant. I. J. Friedman, for appellee. WOOD, J. Benno Stein, an individual, engaged in the wholesale dry goods business in the city of 'FOrt Smith, Arkansas, under the trade name of the. Stein Wholesale Dry Goods Company, will hereafter, for convenience, be called the appellee. Andrew W. Mellon, the successor of James C. Davis, agent of the Director General of Railroads under the Transportation Act of 1920, will hereafter, for convenience, be called the appellant. In January, 1920, the appellant was operatinethe Missouri Pacific Railroad. On the 24th of January, 1920, the appellee delivered to the appellant, at its freight depot in the city of Fort Smith, a box of dry goods of the value at that date of $620.48, marked "B. E. Loving, Loving, Oklahoma." The appellee intended to ship the goods to B. E. Loving at Allen, Oklahoma; and be obtained a bill of lading for said shipment showing the consignee to be B. E. Loving and the destination Allen, Oklahoma. The appellee sent the invoice of the merchandise to B. E. Loving at Allen, Oklahoma. Loving, Oklahoma, is an inland town, and the nearest shipping point is Bates,
ARK.] MELLON V. STEIN. 1093 Arkansas, a station on the Kansas City Southern Railway. Instead of being shipped to Allen, Oklahoma, as called for by the bill of lading, the merchandise was shipped to Bates, Arkansas. ;Within a reasonable time after receiving the invoice, Loving advised the appellee that the goods had not arrived at Allen, Oklahoma, and requested that it be. delivered as soon as possible. The appellee notified the — freight agent of the Director General that the shipment had not arrived at Allen, and asked that a tracer be sent. The goods were not delivered to the appellee sixty days after shipment. The Missouri Pacific Railway was returned to its ownera by the Director General on March 1, 1920. The appel-lee did not know, in fact, that the Missouri Pacific Railway was being operated by a Director General of Railroads at the time of the shipment, and did not, in fact, know that the railroad had been returned to its owners by the Director- General on March 1, 1920. On March 24, 1920, appellee filed his claim with the claim agent of the Missouri Pacific Railway for the loss of the goods. Some time in April, 1920, an agent of the Kansas City Southern Railway Company notified the appellee that he had found a box of goods at Bates, Arkansas, addressed to B. E'. Loving, Loving, Oklahoma. Appellee was advised that the box was opened, and the marks and brands on the goods indicated that the appel-lee was the shipper. An inspector of the Kansas City Southern Railway Company notified the appellee that a box of merchandise was at Bates, Arkansas, marked B. E. Loving, Loving, Oklahoma, and asked the appellee what he intended to do with the box. Appellee replied that he had no further interest in the box of dry goods ; that he had filed his claim against the Missouri PacifiC Railway Company for the loss of the shipment, and would have nothing more to do with it. The Missouri Pacific Railway Company was notified on April 7, 1920, that the box of merchandise was at Bates, Arkansas. The box remained there until the latter part of October, 1920, when it was returned to the appellee by the Kansas City
1094 MELLON V. STEIN. [171 Southern • Railway with an expense and storage charge of $200. The appellee *refused to receiVe the box,: and it waS later sold by the' Kansas City Southern Railway CoMpany for expenses land 'storage charges. ' An actiOn Was instituted lay the appellee, first againd the Missouri : Pacific Railway Cornpany on 'May 19, 1921; to i• ecnier damages for:the loss of the goods. On rriotion of the defendant, the : DireCtor -General of Railroads under the Transportation Act of 1920 was made 'a party defendant. The - Missouri Pacific Railway ; Company denied liability. The Director General admitted receiVing . the box of -goods for Shipthent, but denied that it was Yost through any negligence on his part. A trial was had , Upon the above issues'and facts, -which resulted in a verdict and • judgment against the • issouri- :Pacific Railway . Company; That company appealed - to thiS court; and we held that the Missouri . Padific -Railway COmpany Was not liable, and the cause Was tOmanded for a new trial. See Missouri Padifie Rd. Co. v. Stein; 161 Ark. 405, 265 S. W. 373/. In the trial , of the , present cause' against' the appellant, 'substantially- the same -fact's as above set- forth were developed: In 'addition; there' was introdneed in evidence a portion of a •circular issued ! 'by the Interstate Commerce CommiSsion; aS follows : :" The responsibility of the railroad fOr 'the safe transportation of property begins when the goods are accepted for shipment: The evidence of thé - acceptance is the -signed bill of lading, shipping receipt or acknowledgment to a connecting carrier. , -These . receiptS; whatever form they are given, should be for the:actual amount andcondition of the shipment ; :therefore a' care-fill Check - of all freight is exPected,' whether ' carloads or less than carloads, so that the property; the receiPts, the : way-bill : and the loading may be alike." - • "Rule 6. Sec. -1: Freight; when 'delivered to carriers -to -be transported at less than carload or any quantity ratings, must be Marked in accordance with the following requirements and specifications, except 'as provided in § 2 (b) of this rule, or otherwise provided
ARK.] MELLON V. STEIN. 100 in specific items in this classification or in the Interstate Commerce :Commission's regulations for the . transporta, tion.. , of dangerous, <- articles, :other than.,:explosives. freight (see page 444). If these requirements and specifi7i cations are not complied with, freight will not,beAccepted for ,transportation. „. ;: „.1 . • !Section 2.. (a) . EachT package,,- bundle .. or loose piece of freight : must be , plainly; legibly . and durably marked by brush, .stencil,. marking . .craYon rubber, type, metal type, r pasted , labe,l (see_note 1), tag : (see note 2), or other- method which..proyieles markS equally plain, legible and durable, . showing the „name Of only. one.. consignee, and ,of ..only one, station, town,. or city:and 'State :to, which. destined,. . - • „ .."(e) The, : marks on bundles,. packages or,.pieces - must ..be .compared with :the shipping .order , or lading, and corrections, f necessary; made„ by the: ship-• per or, his re.presentative before . receipt is . signed." . . ,1 The: aboverules :were in force, from:January. 1,. 1920,, • to January ,31;- 1920, inclusive. .. . . A-:. shipping, clerk of„the appellee.; teStified, among: other. things, that . he marked the . box of:Merchandise. in controversy -and made, out . the ,bill of lading from .the. same:ticket, and. that . the box was marked just . like the_ bill of lading and.was ohecked again from the , . bill.of lading before it left the appellee 's 'house ;.that he. 'addressed the, box, not ; by:stencil; but with.free,hand not say positively that he, did not make the -destination-marked on the ,box and on.the bill -.of lading , the same. Appellee, among . other . :things, testified that he refwed to• receive the box' when, it -was tendered to hin?1 in. October --or November, ;1920, because , :the goods..were out of season and the market ha . d, dropped fully fifty or sixty. per cent. The inarket value of the goods,„as shown by the invoice; at the. time the:same were; shipped-to Loving, was $620.48: 'On -cross 7 exarnination; the ,wit7 ness testified the -market was . strong.;in; April and.„May, 1920. He would not. be a bit surprised .but : what :it-was higher in March and April; 1920..-. The * effect of his
1096 MELLON v. STEIN. [171 testimony on cross-examination was that there was no falling-off of the market until about the first of August, 1920. There was testimony on behalf of the appellee to the effect that it was the duty of the station agent and clerk of the Director General of Railroads to check the mark on the box with the bill of lading, and, if there was a different mark, he was supposed to make the correction before signing the bill of lading. It was in evidence by the defendant that the only marking on the box was "`B. E. Loving, Loving, Oklahoma." Upon the above facts the court directed the jury to return a verdict in favor of the appellee. The jury returned a verdict in favor of the appellee in the sum of $620.48, , with interest at six per cent. per annum from January 24, 1920. The appellant duly excepted to the ruling of the court in directing the verdict, and requested the court to instruct the jury to return a verdict in its favor, and also presented other prayers for instructions submitting to the jury the issue as to whether or not the appellant was liable. We deem it unnecessary to set out these requested prayers for instructions by the appella nt. Judgment wa,s entered in accordance with the verdict, from which is this appeal. The court erred in directing a verdict in favor of the appe]lee. It was an issue of fact for the jury, under the evidence, to determine whether or not the appellant was liable. This issue should have been submitted to the jury under correct instructions. There were two issues of fact for the jury, under the evidence : , First, whether or not the appellant was negligent in causing the box of goods in controversy to be shipped to Bates, Arkansas, instead of Allen, Oklahoma; and, second, if appellant was negligent in this respect, it was still a question for the jury, undei . the evidence, as to whether the appellee was damaged, and, if so, the amount of such damage. The testimony of appellee's own shipping clerk who made out the bill--of lading-and-marked the box for shipment was to the effect that he made the
ARK.] 1097 bill of lading from the same ticket, and that the box was marked just like the bill of lading, and was checked again from the bill of lading before it left the house of the appellee. But he concludes his testimony with the statement that he could not say positively that he , didn't make the destination on the box the same as the name of the consignee. This made it an issue for the ju6r as to whether appellee's agent • who handled the shipment for appellee made a mistake in marking the destination on the box "Loving," Oklahoma, when it should have been Allen, Oklahoma. For the error of the court in taking these issues of fact away from the jury and directing the jary to return a Verdict in favor of the appellee the judgment is re-Versed, and the cause is remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.