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

• Decision Date: 16 October 1897
• Citation: 42 S.W. 607
• Parties: GULF, C. & S. F. RY. CO. v. FLOORE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 607

GULF, C. & S. F. RY. CO. v. FLOORE.¹

Court of Civil Appeals of Texas.

October 16, 1897.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by John W. Floore against the Gulf, Colorado & Santa Fé Railway Company for libel. Plaintiff obtained judgment. Defendant appeals. Reversed.

This is an action of libel, the appellee, J. W. Floore, claiming damages, based upon the publication by the defendant of a writing which is alleged to charge plaintiff with the commission of a crime. There was a trial had, resulting in a verdict and judgment in favor of plaintiff for the sum of $4,000, from which this appeal has been perfected. There are no substantial conflicts in the evidence, and the important facts appearing upon the trial, as we gather them from the record, are about as follows: Appellee, John W. Floore, was cashier of the National Bank of Cleburne. E. T. Kelly was teller of the same bank. H. L. Preston was station agent of appellant at Cleburne. W. E. Lufkin was the auditor of appellant, at Galveston, and all the correspondence hereinafter referred to was conducted over his name by his chief clerk, C. H. Beggs. The National Bank of Cleburne, Tex., had been advancing money to A. Fulton & Co., of Sherman, Tex., the cotton on which such advances were made being stored in the compress of the Cleburne Compress Company at Cleburne, Tex., of which S. B. Allen was president. June 19, 1893, the National Bank of Cleburne received from A. Fulton & Co. certain bills of lading already prepared, with directions to have the agent of the appellant at Cleburne sign the bills of lading, and then to attach thereto a draft, and give them credit for the amount of the draft on consignee, with bills of lading attached. The bank on said date held on behalf of A. Fulton & Co. several receipts and dray tickets of the Cleburne Compress Company, calling in the aggregate for 221 bales of cotton. On that date the appellee, John W. Floore, representing the bank, surrendered these different receipts and dray tickets to the representative of the compress company, and obtained therefor compress receipts for 221 bales of cotton, which compress receipts represented that the cotton had thereon certain marks and brands. On the same date said Floore presented the compress receipt with the bills of lading already prepared to the appellant's agent at Cleburne, and appellant's agent, on the faith of the compress receipt, executed the bills of lading. Floore did not know the condition of the cotton, had not seen it, and so stated to the agent at the time, in answer to a question as to the condition of the cotton. Such compress receipt, dated June 19, 1893, called for 221 bales of cotton marked as follows: Two bales marked "T. O. G."; twenty-three bales marked "Z. I. P."; twenty-one bales, "R. O. S."; sixty-six bales, "C. L. O."; thirty-eight bales, "D. O. B."; thirty bales, "T. O. G."; forty-one bales, "T. E. X."

The original bills of lading, of which two were executed, dated June 19, 1893, called for the same number of bales, and with the same marks and brands, as did the compress receipt, and recited that the cotton was shipped from Cleburne to Liverpool by A. Nordon & Co. to the order of A. Fulton & Co.; Russ Bros., Liverpool, to be notified of arrival.

June 19, 1893, H. L. Preston telegraphed B. F. Yoakum, general manager of appellant at Galveston, as follows: "Please cover two hundred and twenty-one bales cotton, now on compress wharf, with insurance. Cotton was pressed some time ago, but was not signed for till this eve. Compress refuse to insure. Will load out to-morrow, and advise."

June 20, 1893, W. E. Lufkin telegraphed Preston as follows: "Your wire 19th to general manager to cover 221 bales of cotton on compress platform with insurance. Have already covered. Wire me when loaded out. Be sure to load out to-day, in accordance with your wire, if at all possible."

Same date,—June 20th,—Preston telegraphed Lufkin as follows: "Your wire to-day. I now find the 221 bales cotton only partially marked; account been lying on compress wharf for several months. Some marks entirely obliterated from weather. In the lot are six different marks. I demanded of compress the cotton and marks, for which I hold clean receipt. They signed for cotton without overlooking marks, and now I am unable to get compress or shipper's re-mark cotton, which I demanded positively. Kindly advise, and wire compress here in the premises. Will notify you when cotton is loaded. Answer. Liverpool cotton, via T. & P."

Same date,—June 20th,—Lufkin telegraphed Preston as follows: "I have your wire, even date, in reference to 221 bales cotton you signed for, been lying on compress wharf for several months. You now find some marks obliterated; some not marked at all. I have covered this cotton by insurance, including to-morrow, the 21st. You must positively get it out of there to-morrow, the 21st, without fail. Do not understand why you did not see that cotton was properly marked before signing for it, it having been on hand so long."

June 21st, Preston telegraphed Lufkin as follows: "My wire yesterday. The 221 bales of cotton is order A. Fulton & Co., Liverpool, via T. & P., New Orleans. Has six various marks. Very little of cotton marked at all. Still in this shape. Am still demanding of compress, through S. B. Allen, president, to furnish me cotton and marks as signed for, that I may rush out. Mr. Allen is pressing shippers' agents to mark, but as yet nothing whatever is done. Please continue insurance. Will advise when loaded. Your advice, please."

June 22d, Lufkin telegraphed Preston as follows: "Have continued insurance on the cotton on compress platform five days longer. See letter to-day."

On same date,—June 22d,—Lufkin wrote Preston as follows: "I received your wire of the 19th to the general manager, requesting that insurance be taken out to cover 221 bales cotton at time on the compress platform, which you stated would be loaded out the next day, and wired you on the 20th—day on which your wire was received here—that insurance had been issued to cover for two days, and for you to be sure to load out on that date. On the 20th, late in the afternoon, I received your wire stating that most of the cotton had not been marked, and that you were demanding of the compress people that they mark it before you would forward it. You must understand that extra insurance outside of our regular schedule has to be obtained in the East by wire, and the short-term policies are exceedingly expensive. When you wired me that the cotton was not marked, I replied at 5:30 that day that I had covered the cotton by insurance including the 21st, and it was positively necessary to get it out on that date without fail. I have your wire this morning that the cotton is still there unmarked, and that you were pressing the compress people to mark it so that you could forward it; also that you would advise me when loaded. I have renewed the insurance for five days longer, and so wired you this morning. I am surprised that you would issue bills of lading on this cotton before seeing that it was properly marked, considering the fact that they had been lying on the compress platform so long. If you cannot get the compress people to mark the cotton up properly, you should make written demand on them for return of bills of lading, stating in your demand that they have not delivered to you the cotton called for. I do not know that they will return the bills of lading, and I see no other course but for you to have the cotton marked up at your own expense. The entire lot must be loaded and moved before the 27th. And I would like to hear from you that this has been done before that date, so additional insurance may be drawn off as early as possible, thereby saving unnecessary expense. Please let me hear from you under personal cover."

June 23d, Preston telegraphed Lufkin as follows: "Your wire June 22. Letter not received. This 221 bales of cotton signed for on a clean compress receipt, as is always the custom, never checking myself, but taking compress check. On loading cotton, found none marked. Compress refuse to protect their receipts, as they do not know class of cotton to re-mark it. Shippers have sent bills of lading off, and will do nothing. On your order, I will load cotton out unmarked, destination Liverpool, via T. & P. and New Orleans. Quick."

June 24th, Preston telegraphed Lufkin as follows: "Please see important personal letter to you on No. 5 to-night."

June 24th Preston wrote Lufkin as follows: "Personal. Referring to your attached. The situation of cotton is this: It is always the custom everywhere, and sanctioned both by yours and G. F. O. [explained by witness to mean general freight office] to issue bills of lading on compress receipt, it being issued to shippers by compress on delivery of cotton, and surrendered to us by shippers on signing bills of lading, they (the compress) surrendering me insurance policies to protect me against cotton on their receipt. The shippers presented regular receipt from compress calling for 221 bales of cotton in six marks. I issued bills of lading as usual. On going to the compress to have them protect same by insurance, as per their receipt, they declined to do so, saying it was agreed between them that shipper would carry insurance, and cotton would go forward on that date, and on this ground they issued receipt, and hence declined to do anything whatever. I went to shippers' agent, J. W. Floore, cashier of the National Bank. He said he had his bill of lading, and would do nothing. This all transpired late in the evening, and I could not do anything but wire for insurance. On loading cotton next a. m., found cotton had laid in weather on compress wharf (which is not on the right of way, and we have nothing to do with it) till marks had nearly all gone. I went to compress again to protect their receipt. They said t...