(after stating the facts). We will first take up the shipment of May 10, 1920, for the 448 crates of strawberries. Upon this branch of the case the undisputed evidence shows that appellee was not entitled to recover against appellant, and the circuit court therefore erred in not directing a verdict in appellant’s favor.
The undisputed evidence showed that the express business was handled by the American Railway Express Company, which was a separate company from the St. Louis-San Francisco Railway Company. The express company owned its own cars and handled all the express shipments. It is true that both companies had the same agent, and that the express company operated its cars over the railroad tracks of appellant; but this did not render the railway company liable for any negligence of the express company in failing to furnish cars for its business. The agent of the shipper testified that he ordered an iced refrigerator express car for the shipment of his 448 crates of strawberries. This was done because appellee could get $1.50 more a crate if the strawberries were shipped in an express car. The express company and the railway company had the right to employ the same person as agent. No conflict of duty could arise in serving the two companies.
The agent also testified that appellee ordered an express car for the shipment of 448 crates of strawberries, and that, in accepting the order, he acted for the express company. The failure of the express company to furnish an express car could not render the railway company liable. It had nothing whatever to do with the transaction, and the mere fact that it set out a refrigerator car for the use of the shipper would not render it liable for the failure of the express company to send an express car, as requested by appellee.
Therefore the court erred in not directing a verdict in favor of appellant, in so far as the first shipment of 448 crates of strawberries is concerned.
According to the allegation of the complaint, the cause of action for the second shipment is also based upon the alleged failure of the railway company to furnish an iced refrigerator express car for the shipment of the 83 crates of strawberries on the 22d day of May, 1920. If recovery is to be sought on the allegation of the complaint, the appellant will not be liable, for the reasons above stated. That is to say, the railway company is not liable for the failure of the express company to furnish the car, because the business of the two companies is separate and distinct. However, according to the evidence of appellant, a refrigerator freight car was ordered for the shipment of the 83 crates of strawberries. It appears that these berries were left over on Saturday from a quantity of berries which had been loaded into an express car for shipment. A telegraphic order was sent for a car some time Saturday afternoon, and it was intended to ship the berries in it some time Saturday night. Appellee ordered a refrigerator car, and it was not delivered until some time Sunday morning. Appellee claimed that the 83 crates of strawberries had become damaged by being kept over Saturday night, and appellee then sold them at a loss on Sunday rather than ship them in the refrigerator car. The refrigerator freight car in question was received at Johnson, Ark., pursuant to the order made on Saturday, and was received about 28 hours after the order was given to appellant’s agent at Johnson.
Section 931 of Crawford & Moses’ Digest regulates the duties of a carrier when a shipper makes application to a station agent for a car, or cars, to be loaded with perishable freight, such as fruit and vegetables. The section provides that such railway company shall furnish a car, or cars, in the kind and quantity ordered at the place of shipment, within twenty-four hours from seven o’clock ■ p. m. on the day following such application.
As we have already seen, the undisputed evidence shows that the refrigerator car was furnished by the railway company within the time prescribed by the statute. If it be said that the complaint should be amended so as to conform to the proof of appellant, there is no negligence shown on its part. Hence the appellee was not entitled, under the proof, to recover damages for the delay in furnishing a refrigerator car by the railway company for the shipment of the 83 crates of strawberries.
It follows, from what we have said, that the circuit court erred in not directing a verdict in favor of appellant, and for that reason the judgment must be reversed, and the cause will be remanded for a new trial.