(after stating the facts). Park brought this suit for himself and others who are named in the complaint.
Counsel for the defendant insist that the court committed prejudicial error in refusing to sustain its motion to strike from the complaint the names of all parties having an interest in the cause of action except T. W. Park. We do not think the court erred in overruling its motion.
According to the allegations of the complaint and the proof introduced at the trial, a number of farmers around Lockesburg. associated themselves together for the purpose of growing and shipping cantaloupes and peaches. T. W. Park was selected by them as their agent to sell and ship their products. He acted as agent for them throughout the season in selling and shipping their cantaloupes and peaches, and brought this suit for himself and others who had cantaloupes at the depot for shipment. Therefore, under the rule laid down in St. Lottis, Iron Mountain & Southern Railway Company v. Cumbie, 101 Ark. 172, there was no error in permitting Park to bring the suit in behalf of himself and all others who had employed him to ship and sell their cantaloupes for them.
It is next contended that the court erred in overruling the defendant’s motion to make the complaint more definite and certain. Counsel say that the complaint merely charges generally that the railroad company failed to furnish cars for the shipment of cantaloupes of the plaintiff, and that it is defective in not setting out the dates on which said cars were ordered.
The undisputed evidence shows that its line of road was only twenty-seven miles long, and that Lockesburg was the only station on its line at which cantaloupes were shipped. The date of the shipping season was shown and the number of cars that the railroad furnished the shippers at Lockesburg during the season. It also appears from the testimony of the railroad company that it knew of the date in question, and only failed to furnish, the cars because it could not get them from the refrigerator company. Hence it is apparent that no prejudice resulted to the defendant in the action of the court in overruling its motion to make the complaint more definite and certain.
It is next contended that the court erred in permitting T. W. Park to testify that he went to see Mr. Ray and talked with him about the shipping association before the season opened and Mr. Ray told him then that he would take care of the shipping. There was no error in admitting this evidence.
One of the defenses of the railroad company to the action was that it was excused from failing to deliver the cars on account of the unprecedented rush in its business. Ray was the manager of the freight department of the railroad company, and Park represented the shippers. Park and Ray talked over the matter before the shipping season began, in order that the shippers might know whether or not the railroad company could handle the shipments and in order to give the railroad company time to prepare for it. Park told Ray about how many cars of cantaloupes and peaches would be delivered to the railroad company for shipment, and Ray told him that the railroad company would take care of the shipments. There is no dispute about this testimony, and it was competent for the purpose of showing that there was no unprecedented demand for cars during the cantaloupe season.
The suit was brought under act 233 of the Acts of 1909, which had for its object to regulate the transportation of perishable freight by railroads in this State. Acts of 1909, p. 698. Under this act when a shipper makes a written application to a station agent of a railroad company in this State for cars to be loaded with any kind of perishable freight, such as fruit and vegetables, stating the character of freight, the kind of cars wanted and the destination of the freight, the railroad company shall furnish the cars at the place of shipment within twenty-four hours from 7 o’clock p. mi on the day following such application. The undisputed evidence shows a violation of this act on the part of the railroad company. It knew in advance how many cars would be needed at Lockesburg during the shipping season for cantaloupes. It furnished cars each day upon the verbal request of T. W. Park, the agent of the shippers. The railroad failed to deliver cars demanded for the shipment of the cantaloupes in question because it could not get them from the refrigerator company, and Park gave the order for the cars to the depot agent in the usual way, and the order was accepted by the agent. Hence there was a waiver of the written notice to supply the cars required by the statute.
As above stated, the undisputed evidence shows that there was no unprecedented demand for cars, and the railroad company could' not defend on that ground. Neither was it a defense to the action that the refrigerator company failed to furnish iced cars to the defendant railroad company. The undisputed evidence showed liability on the part of the railroad company, and the court was correct in so instructing the jury. Cumbie v. St. L., I. M. & S. Ry. Co., 105 Ark. 415. The question of the amount of loss sustained by the shippers was submitted to the jury under proper instructions.
We find no prejudicial error in the record, and the judgment will be affirmed.