Atchison, T. & S. F. Ry. Co. v. Smythe

• Decision Date: 04 May 1909
• Citation: 119 S.W. 892
• Court: Texas Court of Appeals
• Parties: ATCHISON, T. & S. F. RY. CO. v. SMYTHE.<SMALL><SUP>†</SUP></SMALL>

119 S.W. 892

ATCHISON, T. & S. F. RY. CO. v. SMYTHE.^†

Court of Civil Appeals of Texas.

May 4, 1909.

Rehearing Denied May 27, 1909.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by J. H. Smythe against the Atchison, Topeka & Santa Fé Railway Company and another. From a judgment for plaintiff, the Atchison, Topeka & Santa Fé Railway Company appeals. Affirmed.

Terry, Cavin & Mills and A. H. Culwell, for appellant. Geo. L. Charlton and Ewing & Ring, for appellee.

McMEANS, J.

Appellee, J. H. Smythe, instituted this suit against the appellant, Atchison, Topeka & Santa Fé Railway Company, and the Gulf, Colorado & Santa Fé Railway Company, for the recovery of $1,950 as damages growing out of the shipment of a car load of household goods from Houston, Tex., to Los Angeles, Cal.; it being charged in appellee's petition that through the negligence of the carriers the goods were badly damaged in transit. Appellant pleaded the general issue, and specially pleaded that under the terms of the contract of shipment the liability of each carrier was limited to such loss or injury as occurred on its own line, and that no loss or injury occurred on its line. It further pleaded that under the terms of said contract it was provided that, in case of loss or injury, the amount to be recovered should be based on a valuation of $5 per 100 pounds, that said contract was legal and valid under the laws of the state of California, where the shipment was delivered, and that $5 per 100 pounds for such goods as were lost or damaged in transit was tendered to appellee. There were other pleadings filed by the parties, but it is believed that the above will be sufficient to indicate the issues involved. The case was tried before a jury, and a verdict and judgment, based upon special issues, was rendered for appellee and against the appellant, Atchison, Topeka & Santa Fé Railway Company, for $1,676.87, of which sum appellee entered a remittitur of $325. Judgment was rendered on the verdict of the jury in favor of the Gulf, Colorado & Santa Fé Railway Company. This appeal is prosecuted by the Atchison, Topeka & Santa Fé Railway Company alone.

The car of household goods in question was shipped to appellee from Houston, Tex., to Los Angeles, Cal., over the lines of the Gulf, Colorado & Santa Fé Railway Company and the Atchison, Topeka & Santa Fé Railway Company under a through bill of lading, and was delivered by the former to the latter at Purcell, Okl. The goods, at the time of their delivery to the initial carrier, were in good condition and were well packed and braced in the car when loaded at Houston; but before the same reached Los Angeles, the goods while in transit were transferred to another car, and when they reached their destination were scattered all around in the car and were badly damaged. There was no testimony to show on what line of railway the damage occurred, and none offered by either carrier to show its freedom from negligence. At the time of the issuance of the bill of lading by the initial carrier, the appellee signed a special contract, by the terms of which the liability of all carriers concerned in the transportation of the shipment, for loss or injury, was released or limited to $5 per 100 pounds of the goods shipped. This contract is as follows: "Whereas, the undersigned consignor has delivered for transportation to Gulf, Colorado & Santa Fé Railway Company, at the above station, a quantity of household goods, furniture and emigrants' movables, consigned to J. H. Smythe at Los Angeles, described as follows: Car H. H. Goods; and, whereas, said consignor desires to secure the benefit of the lower or special rate applicable only to such transportation at `owner's risk' upon the valuation and conditions hereinafter expressed: Now therefore said railway company agrees to charge for such transportation the lower or special rate applicable to shipments, based on such valuation and the conditions hereinafter stated, and receives said goods for transportation upon the terms herein stated; and said consignor hereby represents and agrees that the value of the above property does not exceed five dollars ($5.00) per hundred pounds, and that in case of any loss or damage to the same said railway company, or any connecting carrier transporting the same, shall not be liable for any greater amount, and that neither said railway company nor any other connecting carrier over whose lines such property may be transported shall be liable for damages to said property by chafing or breaking or from damage of any kind, except such as may occur from negligence of the carrier by collision of trains, or by cars being thrown from the track in course of transportation, and that, if the property shall pass over the road of another company to reach its destination, the company upon whose road the loss, injury or damage may occur shall alone, if at all, be liable therefor, and the above railway company shall not be liable for any loss or damage thereto or any delay in transportation or delivery thereof by any connecting or succeeding carrier or company, and that no claim for loss of or damage to the above property shall be valid unless presented to the railway company in writing within thirty (30) days after said property shall have been delivered."

It was shown that the freight rate on household goods from Houston to Los Angeles, where the $5 release clause was signed, was $1 per 100 pounds, and where such a contract was not signed the rate was $1.60 per 100 pounds. After appellee received the goods at Los Angeles, he wrote to the agent of appellant there as follows: "Inclosed is a list of the goods damaged and for which I wish to make a claim. Your assistant claim agent was here and examined the damages and has a list also." Then follows a list of articles in which the weight of each is given. Some days later appellee wrote the following letter to appellant's claim agent: "In reference to your recent request for bill of repairs to furniture damaged in shipment from Houston, Texas, to this city for which claim has been entered by J. H. Smythe, would state that the extent and nature of the damage is such that we have not at the present date felt able to afford to have repairs made. A greater part of this furniture was new before shipment, and for this reason special car was chartered in order that it might be shipped without damage. We assume that the furniture, by its appearance and condition on arrival, had been laying on the prairie for two or three ______ between its transfer from the original car 24117 to car 2810. Under these conditions, I believe that a settlement could be made under the conditions printed on the waybill, viz., $5.00 per 100 pounds, and I am anxious to have the matter adjusted as soon as possible." Appellee testified that in giving the weight of the articles he was expecting to get a settlement based on weight.

Appellant's first assignment of error, submitted as a proposition, is as follows: "The court erred in failing and refusing to grant this defendant a new trial on the first ground of its amended motion therefor, which was as follows: The verdict of the jury is contrary to law and against the evidence in this case, in this: The evidence shows without contradiction that, prior to the shipment of the goods in question, plaintiff entered into a contract with the Gulf, Colorado & Santa Fé Railway Company for the carriage of these goods to the end of its line, and there to deliver the same to the next connecting carrier, to wit, this defendant, and that, in consideration of the reduced freight rate which was obtained by the plaintiff, the said plaintiff obligated himself that in case of loss or damage to said goods, or any part of the same, while they were in possession of the carriers, that the amount of said loss or damage should be estimated and based from $5 per hundredweight of goods so lost or damaged; that the evidence shows without contradiction that the weight of the goods injured and for which damages were claimed was about 4,465 pounds, and that the plaintiff presented claim...