G., H. & H. R'Y Co. v. Allison

• Decision Date: 29 March 1883
• Docket Number: Case No. 1358.
• Citation: 59 Tex. 193
• Parties: THE G., H. & H. R'y CO. v. S. B. ALLISON.
• Court: Texas Supreme Court

59 Tex. 193

THE G., H. & H. R'y CO.

v.S. B. ALLISON.

Case No. 1358.

Supreme Court of Texas.

Mar. 29, 1883.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Appellee shipped by appellant's road five cars of melons, from the city of Galveston, in Texas, to Chicago, Illinois. Somewhere on the route to Chicago, the cars were broken open, appellee's locks were taken off, the melons transferred into common box cars, and many were wasted and destroyed. They reached Chicago in a damaged condition. Appellee brought suit in the district court of Galveston county for the difference between the market price of good melons at the time the melons reached Chicago, and the price received.

Defendant answered by general and special demurrers, and pleaded a special contract, signed by the shipper, that defendants should only be liable for damages on their own route; that the usage of the trade was for the defendant to deliver freight shipped to be delivered beyond its own route to the connecting carrier, and their liability ended with such delivery, and the usage was well known to plaintiff; that the melons were delivered at their terminus at Houston in as good order as received, without delay and under seal, and denied any contract to carry beyond Houston, and claimed to be forwarders only beyond Houston. The defendant's demurrers were overruled and defendant excepted.

The case resulted in verdict for the plaintiff against the defendant for $1,532, and judgment was entered on the verdict.

Defendant gave in evidence this contract:

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                ¦“ST. L. & I. M. & S., 4263.¦ORIGINAL¦
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CONTRACT.

GALVESTON, HOUSTON & HENDERSON R. R. CO. OF 1871,

GALVESTON STATION, 6, 26, 1881.

In consideration of the Galveston, Houston & Henderson Railroad Company of 1871 transporting my property as described, car-load of melons, from Galveston station to Chicago station, the same being consigned to G. Lasher & Son, in and for the following rates:

It is expressly understood and agreed that said company is, and the connecting companies over whose line said goods may pass to their destination are, not liable to shipper, consignee, or owner, for any damage or injury to the goods, that may occur from leakage, decay, chafing, breakages, effects of heat or cold, fire while in transit, or at stations, or from any other causes whatever, not the result of collision of cars, or of cars being thrown from the track while in transition, nor is said Galveston, Houston & Henderson Railroad Company of 1871 to be liable for any damage, loss or injury occurring not on its own railroad.

And I further guaranty to said company or companies, that any and all freight and other necessary charges that may accrue, as provided by tariffs of said road, or roads, shall be paid by consignee within twenty-four hours after arrival of said goods at destination.

Signed, sealed and delivered in duplicate.

S. B. ALLISON. [Seal.]

WM. M. EVANS, Witness.”

The following notice was printed on the face of this contract:

“READ CAREFULLY.

This contract is to be executed in duplicate by all shippers of all kinds of furniture or household goods, and all kind of perishable property, the original in every case to be attached by being pinned to freight way-bill accompanying shipment. Duplicate to be retained by agents. Any agent receiving and forwarding such goods without this contract attached to his way-bill will have the same returned to him with charges, and be held personally responsible for all charges and damages that may accrue.”

Appellee loaded the cars himself, packed the melons carefully in hay, locked the cars with his own locks, took receipts for them as being consigned to G. Lasher & Son, 125 S. Water street, Chicago, Illinois, and appellant agreed to deliver said melons at Chicago in a reasonable time, the schedule time being about five days.

Allison testified: “The general agent of appellant's road promised and agreed that the melons in said cars should go through to Chicago without breaking bulk and without transfer.”

The foregoing, in connection with the opinion, presents the case.

Edward Austin, for appellant.

I. The petition setting up a contract to forward, and showing no damage on defendants' route, the defendants were not liable as common carriers beyond their own route, in the absence of a contract to carry through. Redfield on Carriers, sec. 181; Lawson's Contracts of Carriers, sec. 177; Reed v. U. S. Express Co., 48 N. Y., 462; Lawson's Contracts of Carriers, sec. 236 and references; 2 Story on Contracts, pp. 210, 214; American Express Co. v. Second Nat. Bank, 69 Pa. St., 394.

II. There being no partnership alleged or proved between the companies on the line from Galveston to Chicago, the company on whose line the loss occurred would alone be liable. 2 Story on Contracts, sec. 759; Hood v. New York & New Haven R. R. Co., 22 Conn., 1; Lawson's Contracts of Carriers, sec. 177, p. 246; Reed v. U. S. Express Co., 48 N. Y., 462; Angle v. Miss. R'y, 9 Iowa?? 487; Redfield on Carriers, sec. 189.

W. B. Denson, for appellee, cited Lawson on Contracts of Carriers, 234, 235, 238, 239, 240; also pp. 181-2, 142; 19 Wend., 534;Foy v. Troy & Boston Railway, 24 Barb., 382;Kyle & Laurens Railway, 10 Rich. (S. C.), 382;Illinois Central Railway v. Copeland, 24 Ill., 332;2 Duval, 4; 2 Redf. on Railways, p. 117, and notes.

WILLIE, CHIEF JUSTICE.

On a former day of this term we adopted the opinion of the Commissioners of Appeals reversing the judgment of the court below and remanding this cause for a new trial. Since then a motion for rehearing has been filed, which we are asked to grant for the reason that the opinion rendered in it was based upon a misconstruction of the pleadings of the plaintiff below. It was said in the opinion of the commissioners that there was no sufficient allegation in the petition that appellant contracted with Allison that the melons, loaded by him at Galveston upon appellant's cars, should go through to Chicago in the same cars upon which they were shipped. The statement contained in the petition that plaintiff “shipped from said city of Galveston by said defendant's railway, to be delivered by said railway and its agents and connecting lines, at the city of Chicago aforesaid, five cars of watermelons,” was held an insufficient averment of such contract. Hence a charge of the court, based upon the assumption that any such agreement had been alleged, was held erroneous, and for that reason the judgment was reversed. The motion for a rehearing calls to our attention other averments of the petition, which, taken in connection with that already recited, it is insisted, amount to a sufficient allegation of a contract to transport the freight through to Chicago in the same cars upon which it was loaded at Galveston.

It is alleged that appellant promised and agreed to forward said cars immediately and with dispatch, after they were loaded upon the days aforesaid, to plaintiff's agents in the city of Chicago. It was also alleged that these cars were turned over to plaintiff for the purpose of shipping melons thereon from Galveston to Chicago; that plaintiff loaded them and retained the keys with which they were locked; and that the agreement violated by appellant was one in which it promised to forward said cars loaded with the melons to Chicago. The principal breach of contract alleged is the breaking of the locks...