Wells Fargo & Co. Express v. Harwell , 110 Ark. 81 ( 1913 )

Kirby, J.,

(after stating the facts). It is strongly urged that each of the instructions given was erroneous and the one directing a finding for the plaintiff especially prejudicial.

A common carrier is liable in damages for negligent delay in the transportation Of property, but the owner can not on account of unreasonable delay in the delivery refuse to receive the goods and sue as for a conversion. Chicago, R. I. & P. Ry. Co. v. Neusch, 99 Ark. 568; Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524; C. & O. Ry. Co. v. Saulsberry, 12 L. R. A. (N. S.) 431. The shipper had no right to refuse to accept the shipment of his goods tendered for delivery on account of delay, nor did lie do so, bnt refused to receive the shipment because it had been broken and the contents scattered, and he did not believe they were the skins purchased and shipped by him, because there were more than a hundred more of a certain kind than he had shipped, and even if he had wrongfully refused to receive the goods, the carrier could not convert them to its own use, nor abandon the shipment without liability therefor. St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 179; Chicago, R. I. & P. Ry. v. Pfeifer, supra.

If appellee was bound to accept the shipment when tendered to him and failed to do so, the express company was still liable to him for the amount for which the skins were sold, less the charge for carriage, as the court correctly told the jury, in instruction numbered 3. It also told the jury that if the company failed to deliver the shipment after its arrival in St. Louis they should find for the appellee, the market value less the cost of carriage, with interest, which was a correct' instruction, and that the only question for determination by the jury on the point of a tender of the shipment by the company was whether the skins offered to be delivered were the identical ones shipped by the plaintiff.

If the company failed to deliver the shipment it was liable for the market value thereof, and if it offered to deliver the identical shipment and the consignee wrongfully refused to receive it, it could not abandon the shipment nor convert it to its own use, but was liable for the value thereof, in a proper action, less the reasonable cost attendant upon the keeping and disposition of it. The jury necessarily found that the identical shipment of skins was not tendered for delivery to appellee, a question that was properly submitted by the instructions, and the fact that they were told to find a verdict for the plaintiff, though wrong, was not prejudicial, because they did find that the shipment had not been tendered for delivery.

Appellant’s requested instructions that correctly stated the law were sufficiently covered by those given.

Finding no prejudicial error in the record, the judgment is affirmed.