Gulf, C. & S. F. Ry. Co. v. Dwyer

• Decision Date: 26 March 1892
• Parties: GULF, C. & S. F. RY. CO. v. DWYER.
• Court: Texas Supreme Court

19 S.W. 470

GULF, C. & S. F. RY. CO. v. DWYER.

Supreme Court of Texas.

March 26, 1892.

Appeal from district court, Washington county; JOHN ALEXANDER, Special Judge.

Action by Thomas Dwyer against the Gulf, Colorado & Santa Fe Railway Company to recover the statutory penalty for refusing to deliver a car load of nails on tender of the charges shown in the bill of lading. Judgment for plaintiff. Defendant appeals. Reversed.

The charges as shown by the bill of lading were less than those shown by the way bill accompanying the goods.

J. W. Terry, for appellant.

Bassett, Seay & Muse, for appellee, on the right to be reimbursed for payment of accrued charges, cited Bissell v. Price, 16 Ill. 408; Steamboat Virginia v. Craft, 25 Mo. 76; Travis v. Thompson, 37 Barb. 236.

GAINES, J.

This is the third appeal in this case. The first is reported in 69 Tex. 707, 7 S. W. Rep. 504, and the second in 75 Tex. 572, 12 S.W. Rep. 1001. The nature of the suit is shown in the former opinions, as reported in the volumes cited. The assignments of error upon this appeal are numerous, but we do not consider it necessary to consider them in detail. Upon the second appeal we held that the act under which the penalty is attempted to be recovered in this case "only applies when the railroad company that is sought to be charged in damages has either itself executed the bill of lading, or has authorized another company to execute, or has ratified it by a voluntary act on its part." We also held in that opinion that an acceptance of freight by a railroad company from a connecting company, being compulsory, under our statutes, could not be deemed a ratification of the bill of lading. It is complained that the court erred in not granting a new trial, for the reasons set up in the defendant's fifteenth ground of motion for new trial, which is as follows: "The verdict of the jury is contrary to the law and the charge given at the request of the defendant, and without evidence to support it, in this: That the uncontradicted and positive testimony shows that the bill of lading was never authorized by the defendant or ratified by it; that it was issued by a foreign road, without the knowledge or consent of defendant, and that defendant had no knowledge of the bill of lading until after the nails arrived at Brenham, and that the road which issued the bill of lading had no authority to contract for or on behalf of the defendant; that defendant received the nails in good faith, paying the $197.50 advance charges, and only demanding the same, with its own legitimate charges of $35.00 added, and did not transport the goods under or by virtue of the bill of lading." We are of opinion that the assignment of error should be sustained. The testimony is somewhat voluminous, and we do not deem it necessary to set it out in detail. The only evidence relied upon to show that the appellant authorized its connecting carrier to execute the bill of lading, or that it was ratified after its execution, is the circumstance that, when appellee demanded the car load of nails, appellant's agent at Brenham, Tex., offered to deliver it upon payment of the freight specified therein, provided appellant would surrender the bill of lading, and execute a receipt to the railroad company for the overcharge. This fact is consistent with the theory that the appellant was a party to the original contract, but it is equally consistent with the other theory, that the object of the offer was to maintain the custom of the line of transit by respecting the contract of the connecting carrier, and looking to it for reimbursement. The demand for the...