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

• Decision Date: 25 November 1922
• Docket Number: (No. 10059.)
• Citation: 248 S.W. 788
• Parties: COULTER v. GULF, C. & S. F. Ry. CO.
• Court: Texas Court of Appeals

248 S.W. 788

COULTER v. GULF, C. & S. F. Ry. CO.

(No. 10059.)

Court of Civil Appeals of Texas. Fort Worth.

November 25, 1922.

Rehearing Denied February 17, 1923.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by W. H. Coulter against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant on a peremptory instruction, and plaintiff appeals. Reversed and remanded.

Sam J. Hunter and L. C. Penry, both of Fort Worth, for appellant.

Lee, Lomax & Smith, of Fort Worth, for appellee.

DUNKLIN, J.

H. W. Coulter shipped two carloads of billiard and pool tables with certain equipments from Forth Worth, Tex., to the city of Philadelphia, Pa., and he instituted this suit to recover damages for injuries to the goods during that shipment.

The case was tried before a jury, and judgment was rendered for the defendant upon a verdict which was instructed by the trial judge, and the plaintiff has appealed.

The record does not show upon what theory the trial court gave the peremptory instruction to return a verdict for the defendant. The appellee, however, has sought to sustain that instruction for two reasons: First, that plaintiff's cause of action, as asserted in his amended pleadings upon which he went to trial, was barred by the statute of limitation of two years; and, second, that he failed to prove, prima facie, a proper measure of damages by competent testimony.

This is the second appeal in this case, the decision of the former appeal being by the Texarkana Court of Civil Appeals and reported in 139 S. W. 16. That decision, rendered June 8, 1911, reversed and remanded the judgment rendered for the plaintiff on a former trial for the sum of $6,760.

It is stated by counsel that the trial from which the present appeal was taken was upon substantially the same evidence offered by plaintiff on the former trial, said evidence having been read from the record of the former trial and depositions on file. And after plaintiff had introduced his proof to sustain his right of recovery, the defendant filed a motion for an instructed verdict without introducing any evidence, and upon that motion the peremptory instruction to the jury was given.

The pleadings upon which plaintiff based his right of recovery on the first trial appear to be the same as those relied on in the last trial. After the former judgment was reversed, the defendant filed an amended pleading, in which occurs, for the first time, the plea of limitation of two years; otherwise, its defensive pleadings were substantially the same.

The goods were delivered to the defendant's agent in Fort Worth on May 2, 1907, to be shipped to Philadelphia, and they arrived at that destination June 26, 1907. The suit was instituted March 20, 1908; but the amended pleading, by virtue of which defendant claimed a new cause of action was alleged, and which was barred by the statute of limitation of two years, was filed December 8, 1909, more than two years after the goods reached their destination. The substance of the original petition and amended petition is set out in the opinion of the Court of Civil Appeals referred to.

The original petition contained allegations, in substance, that plaintiff delivered the goods to the defendant's agent at Fort Worth, Tex., for shipment to Philadelphia, Pa., with the instruction from him to said agent that the goods be routed and waybilled via St. Louis, Mo., over the Vandalia line of railway, to Indianapolis, then on to Philadelphia, Pa.; that defendant's agent then and there agreed to so ship and route the goods; that by the defendant's acceptance of the goods for shipment under such instructions for routing, the defendant agreed and bound itself to so ship and route the goods and to ship them with reasonable dispatch; that said agent agreed with plaintiff that the freight to be paid by him for such shipment from Fort Worth to Philadelphia would be $230, which plaintiff offered to prepay, but which offer was refused by defendant's agent in Fort Worth, who stated at the time that such freight charges could be paid by plaintiff at the destination of the shipment. It was further alleged in that pleading that the defendant, in violation of its contract and agreement, refused to route the goods as directed, but, instead, routed them over its own line and the line of the Atcheson, Topeka & Santa Fé Railway to Chicago, said two roads being under the same ownership and control, and from Chicago over the Pennsylvania Railway and the Philadelphia & Reading Railway to Philadelphia; that the goods were en route from May 2d to the 26th day of June; that relying upon defendant's promise to route the goods as directed, plaintiff went from Fort Worth to Philadelphia to await the arrival of the goods, and after reaching that point he spent $300 for traveling and telegraphic expenses, in an effort to locate the goods.

It was further alleged that when the goods arrived in Philadelphia plaintiff was required to pay the sum of $549.69 freight charges in order to get a delivery of the goods; that when the car was opened the goods were in a badly damaged condition, being broken, mashed, wet, unglued, and so damaged that they were almost worthless; that had he known of their damaged condition he would not have received them, but the delivering carrier refused his request for permission to inspect them before receiving them and paying the freight demanded; that after he received them and found them in the damaged condition he tendered them back to the carrier, who refused to accept them; and that he was compelled to unload and store them at a cost of $24 per month storage charges, which he had been compelled to pay from the date of their receipt up to the time the suit was instituted.

Plaintiff further alleged that the goods were reasonably worth in Fort Worth and in Philadelphia the sum of $20,000, which sum he had paid therefor only a few months before they were delivered to the defendant for shipment. The said original petition concluded with the following allegation:

"That by reason of the premises and by reason of the negligence, fraud, and misrepresentations and breach of contract and breach of duty on the part of the said defendant in failing to waybill and route said goods as it agreed to do, and in failing to carry said goods to St. Louis and deliver them to the Vandalia line as it was directed, and as it agreed to do, and by reason of its negligently failing to transport and carry said goods in a reasonably careful and diligent manner, and with proper dispatch, and by diverting said goods from the route the defendant agreed to carry them, by reason of the injuries and almost utter destruction of said goods caused by the defendant and the railroad companies over which and to which it unlawfully diverted said shipment, negligently rough handling same, the plaintiff has been damaged in the sum of $20,000.00 and therefore he sues.

"Wherefore the plaintiff prays for citation herein, and upon final hearing hereon, for judgment against the defendant for his damages interest, and costs, and for all other and proper relief, both general and special, and he will ever pray."

On December 8, 1909, plaintiff filed two pleadings, one styled "Plaintiff's First Supplemental Petition," and the other styled "Plaintiff's Trial Amendment." In the supplemental petition, following a general denial of the allegations contained in the defendant's answer, plaintiff alleged that on April 29, 1907, and before he tendered the goods for shipment to the defendant's agent at Fort Worth, he entered into a written contract with one Grant H. Eby, by the terms of which plaintiff had contracted to sell to Eby, and Eby had contracted to buy, the goods for a consideration of $7,000; that Eby contemplated opening up a billiard hall either in Detroit, Mich., or in Indianapolis, Ind., or in Philadelphia, Pa., and his contract of purchase was conditioned upon a shipment of the goods via Indianapolis and Detroit with the privilege of stopping them at either of those places in the event such place should be determined as his place of business, otherwise that he would receive them in Philadelphia, and conditioned further that the goods should be delivered to him in as good condition as they were in on the date of the contract of purchase. It was further alleged that after procuring from Eby said contract of purchase, plaintiff made an oral contract with Graham, defendant's agent at Fort Worth, for the shipment of goods over the route designated in the original petition with the privilege of diverting them from Indianapolis to Detroit, if Eby so desired, and with the privilege of terminating the shipment either at Detroit or at Indianapolis.

It was further alleged that the defendant's agent agreed to furnish a 50-foot car for said shipment, but that subsequently, at the instance and solicitation of the agent, plaintiff was induced to agree that the shipment be made in two 30-foot cars, and that said agent agreed with plaintiff that the freight charges for said entire shipment would be the sum of $230. It was further alleged in that pleading that at the time defendant's agent so agreed to make such shipment, plaintiff exhibited to him the written contract of sale which he had made with Eby, which contract contained the stipulation above mentioned for routing with privilege of terminating the shipment at either Indianapolis or Detroit, as Eby might desire. It was further alleged that after making the contract with defendant's agent, Graham, and when he delivered the goods to the defendant at Fort Worth and defendant accepted the same, plaintiff instructed the shipping agent, Dunham, to route and ship and waybill the goods as above mentioned, and also notified the said Dunham of the contract of sale which plaintiff had made to Eby; that he was assured by said Dunham that his instructions for routing and shipping would be complied with; that after...