American Ry. Express Co. v. Parisian Hat Co.

• Decision Date: 25 March 1922
• Docket Number: (No. 8636.)
• Citation: 240 S.W. 947
• Parties: AMERICAN RY. EXPRESS CO. v. PARISIAN HAT CO.
• Court: Texas Court of Appeals

240 S.W. 947

AMERICAN RY. EXPRESS CO. v. PARISIAN HAT CO.

(No. 8636.)

Court of Civil Appeals of Texas. Dallas.

March 25, 1922.

Rehearing Denied April 15, 1922.

Appeal from County Court, at Law, Dallas County; T. A. Work, Judge.

Action by the Parisian Hat Company against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gaius G. Gannon and Smith, Robertson & Robertson, all of Dallas, for appellant.

Chas. T. McCormick and Etheridge McCormick & Bromberg, all of Dallas, for appellee.

VAUGHAN, J.

Appellee, a joint-stock association, instituted this suit against appellant to recover $550 damages.

Appellee alleged that on or about the 23d day of March, A. D. 1920, it delivered to appellant at Dallas, Tex., for transportation and delivery to J. B. Senk, at Ranger, Tex., a shipment of merchandise consisting of 41 hats, 1 dozen elastic veils, 1 30-yard bolt veiling, and 1 25-yard bolt veiling. That a reasonable time for the delivery of the said shipment was, to wit, two days, and that the plaintiff had facilities for the disposition and sale of said property at Ranger, Tex. That defendant unreasonably delayed the transportation and delivery of said shipment until on or about the 23d day of April, at which time it notified plaintiff that the goods had arrived at Ranger. That on the said date the shipment had become practically unmarketable, in that the season for the same had passed, and that the merchandise contained in the shipment at that time, to wit, April 23, 1920, had no value except of their material. That such value would not exceed $75.

That at the time of shipment appellant was notified that the shipment consisted of seasonable merchandise and that it was necessary for the same to be rushed in order that it might be profitably disposed of.

That there was no wholesale market value for said goods at Ranger, Tex., and that, had appellant delivered the same with reasonable dispatch, appellee would and could have disposed of said goods for a sum which would have enabled it to realize a profit thereon of not less than $550.

That by occasion of the unreasonable delay of appellant in delivering said property as aforesaid, and of the decrease in the market value of the same during said period of unreasonable delay, and of the loss of profits aforesaid, appellee has been damaged in the sum of $550.

Appellant pleaded a general demurrer, a general denial, and specially answered that if the shipment referred to in appellee's petition was ever accepted for transportation and delivery by appellant, which is not admitted but expressly denied, then the shipment was tendered for delivery to and accepted by it under what is known as a limited liability contract; that, at the time appellee delivered said shipment to appellant, it declared and released the value of same to a sum not in excess of $500; and that appellant, in consideration of the value so declared or released, agreed to carry the said shipment at a lesser rate than would have been charged for same or similar service, and pleaded said contract for limited liability as a complete bar to appellee's right to recover in any event a greater sum than $500.

The trial was had before the court without a jury, and judgment was rendered in favor of appellee for $500.

Appellant admitted its liability, and the measure of damages is the only controversy presented by this appeal. On this issue the following facts are established by the evidence:

The shipment, containing the 41 hats, elastic veils, and two bolts of veiling was delivered to and accepted by appellant at its place of business for receiving merchandise for transportation on the 23d day of March, 1920, and, at the time, appellant's agent receiving said shipment was informed that same were seasonable goods and that Mr. J. B. Senk was going to Ranger to receive said shipment for appellee and would be there a week, and that unless said shipment was received within that time the goods would be worthless; that the hats were going to be sold at the hotel in Ranger, and that Mr. Senk would be in Ranger to sell same; that the wholesale value of said hats in Dallas at that time was $450; and that said hats had a retail value in Ranger, Tex., at the time same were shipped, of $629.

When said goods were received back in Dallas, they had no retail value either at Dallas or at Ranger. It was not shown whether or not there was a wholesale millinery store at Ranger, or that Dallas was such nearest wholesale market to Ranger; but it was shown that Dallas was the nearest principal wholesale millinery market for Ranger during the period of time covered by said transaction.

On April 13, 1920, the season for spring hats had passed, and said hats had no retail value in Ranger on that date. Said hats reached Ranger, Tex., on April 13, 1920, and were worth at that time about $75. They were delivered to appellee in Dallas, Tex., by appellant about April 25, 1920; the season for the sale of same having passed before that date. That when the hats were returned to appellee at Dallas by appellant they had no wholesale or retail value either at Dallas or Ranger, but were worth about $75 intrinsically; that is, the raw material in the hats, if taken apart, would be worth about $75. The evidence did not establish what would have been the wholesale value of said hats at Ranger, Tex., at the time same should have been, with reasonable dispatch, delivered to appellee at said place, to wit, the 26th day of March, 1920.

The trial court found that appellant had breached its contract of carriage and its obligation as a common carrier and was...