Beaumont, S. L. & W. Ry. Co. v. Farmers' Co-Op., Etc., Co.

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Beaumont, S. L. & W. Ry. Co. v. Farmers' Co-Op., Etc., Co., 298 S.W. 454 (Tex. App. 1927)
• Decision Date: 14 July 1927
• Docket Number: (No. 9002.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BEAUMONT, S. L. & W. RY. CO. v. FARMERS' CO-OP. SWEET POTATO CURING CO. OF ROSEPINE, LA.

298 S.W. 454

BEAUMONT, S. L. & W. RY. CO. v. FARMERS' CO-OP. SWEET POTATO CURING CO. OF ROSEPINE, LA.

(No. 9002.)^*

Court of Civil Appeals of Texas. Galveston.

July 14, 1927.

Rehearing Denied September 20, 1927.

Error from Harris County Court; Ray Scruggs, Judge.

Action by the Farmers' Co-Operative Sweet Potato Curing Company of Rosepine, La., against the Beaumont, Sour Lake & Western Railway Company and another. To review the judgment rendered against it, the named defendant brings error. Affirmed.

Andrews, Streetman, Logue & Mobley, and J. R. Andrews, all of Houston, for plaintiff in error.

Bryan, Colgin, Suhr & Bering, of Houston, for defendant in error.

LANE, J.

This suit was brought by the Farmers' Co-operative Sweet Potato Curing Company, hereinafter for convenience called the potato company, against the Beamont, Sour Lake & Western Railway Company, to recover the sum of $500 as damages which plaintiff alleges it suffered by reason of the negligence of the railway company in transporting a car of potatoes from Rosepine, La., to Houston, Tex.

In its original petition, filed on the 6th day of July, 1923, the plaintiff alleged that on the 19th day of May, 1922, it loaded into a car 375 sacks of potatoes at Rosepine, La., and delivered the same to the Kansas City Southern Railway Company, a connecting carrier with the defendant railway company, for transportation and delivery to Joe Jamail Company at Houston, Tex.; that at some point en route the potatoes were transferred from the car into which they were first loaded into car M. P. 99103, and forwarded over defendant's line to Houston, their destination; that the potatoes when delivered to the Kansas City Southern Railway Company for transportation were in good condition, but that when they arrived at Houston they were overheated and had begun to materially decay and deteriorate; that 10 sacks of the potatoes were missing when the car reached Houston; that the overheated condition of the potatoes was caused by the negligence of the defendant railway company in leaving the vents closed in the car into which they were transferred en route, and that the shortage in quantity upon reaching Houston was due to the negligent handling of same by the defendant in transit; that due to the bad condition in which the potatoes reached Houston, Joe Jamail Company refused to receive them; that it had sold the potatoes to Joe Jamail Company for the sum of $664, less freight and demurrage of $163.36; that, because of the damaged condition of the potatoes and the refusal of Jamail Company to receive them, plaintiff was compelled to sell, and did sell, them for a net sum of $140.77, leaving a loss to it of $359.87.

Plaintiff, in the alternative, alleged that defendant, because of its negligence which resulted in the damage complained of, became liable to it for the difference between the reasonable market value of the potatoes at Houston and the amount for which they were sold.

On March 20, 1925, plaintiff filed its first amended original petition and made the Kansas City Southern Railway Company a party defendant. In this petition the allegations of the original petition were substantially repeated and made to apply to the Kansas City Southern Railway Company, as well as to the original defendant, and the prayer was for judgment against both companies jointly and severally.

The defendant Beaumont, Sour Lake & Western Railway Company answered by general demurrer, general denial, and by specially alleging that at the time the potatoes were delivered to it by the Kansas City Southern Railway Company, they were unsound and in a decaying condition, that such condition, coupled with the natural tendency of potatoes to rot, deteriorate, and decay, brought about, aggravated, and hastened the damage mentioned, and that no part of such damage resulted from any negligent act of defendant.

The Kansas City Southern Railway Company, among other things unnecessary to state, pleaded the statute of limitations in bar of the plaintiff's action against it.

The case was tried before the court without a jury and judgment was rendered in favor of the Kansas City Southern Railway Company upon its plea of limitation, and in favor of the plaintiff for the sum of $346.51 against the Beaumont, Sour Lake & Western Railway Company.

From the judgment rendered against it, the last-named company has appealed.

A request being made for a finding of facts and conclusions, the court filed his findings and conclusions as follows:

"Findings of Fact.

"I. I find that on May 19, 1922, the plaintiff delivered to the defendant Kansas City Southern Railway Company, at Rosepine, La., for shipment to the Joe Jamail Company at Houston, Tex., 32,532 pounds of sweet potatoes which were by the plaintiff loaded into car C. M. & St. P. 29128.

"II. I find that the plaintiff paid the regular freight rate on said shipment of potatoes.

"III. I find that at the time said potatoes were delivered to defendant Kansas City Southern Railway Company they were in good condition.

"IV. I find that, when said car of sweet potatoes arrived at Beaumont, Tex., the same was loaded out of said car C. M. & St. P. 29128 by the defendant Beaumont, Sour Lake & Western Railway Company and were by said defendant loaded into car M. P. 99103 and were in said car last referred to carried to Houston, Tex.

"V. I find that there is no evidence that said sweet potatoes, when they arrived at Beaumont, Tex., and were received by the defendant Beaumont, Sour Lake & Western Railway, and by it loaded into car M. P. 99103, were not in good condition.

"VI. I find that the Kansas City Southern Railway Company was the initial carrier and the Beaumont, Sour Lake & Western Railway Company was the connecting carrier.

"VII. I find that when said sweet potatoes arrived in Houston, Tex., and were tendered to the consignee, Joe Jamail Company, they were in an...