Davies v. Texas Cent. R. Co.
| Decision Date | 09 November 1910 |
| Citation | 133 S.W. 295 |
| Parties | DAVIES v. TEXAS CENT. R. CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; Marshall Surratt, Judge.
Action by Robert Davies, surviving partner of Thomas Taylor & Co. against the Texas Central Railroad Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
John W. Davis, for appellant. J. A. Kibler, for appellees.
Appellant filed this suit on September 3, 1908, as surviving partner of Thomas Taylor & Co., against the Texas Central Railroad Company, the International & Great Northern Railroad Company, and T. J. Freeman, as receiver of said last-mentioned company, alleging that on November 23, 1905, said Taylor & Co. entered into a written contract with the Texas Central Railroad Company for the transportation of 235 bales of cotton from Hico, Tex., to Galveston, Tex., and the failure to deliver 12 bales of said cotton. By proper allegations it is shown that the International & Great Northern Railroad Company is the connecting carrier, and that T. J. Freeman is the receiver of said last-mentioned road.
Freeman excepted to said petition as not showing that he was either a necessary or proper party, which exception was sustained by the court. All of the defendants excepted to the petition as showing that plaintiff's cause of action was barred by the two years' statute of limitations. These exceptions were also sustained.
As touching the liability of the receiver, it is alleged that said receiver was appointed in February, 1908, and it is not alleged that said cotton, or any part thereof, ever came to his possession or into the possession of said International & Great Northern Railroad Company after that date.
As regards the statutes of limitation, appellant does not charge either of the appellees with doing any injury to his property or with detaining or converting his property, unless the charge of failure to transport and deliver said cotton in accordance with the terms of the written contract constitutes such charge; he does not charge either of them with failure to discharge any duty which they owed as common carriers; he does not allege any demand for his cotton or for pay therefor; he does not allege anything which would indicate a refusal by appellees, or either of them, to find said cotton and deliver the same prior to February 2, 1908, at which time he alleges that the Texas Central Railroad Company said they would not further consider the matter of finding and delivering said cotton, or of paying for the same if it had lost it, unless the allegations amount to a charge of conversion on January 1, 1907; he does not allege that said cotton is now or has ever been lost. He simply alleges the written contract and the breach thereof by the failure to deliver said 12 bales of cotton, to his damage $874.50, which he alleges to be the value of the same, and sues for the recovery of said cotton or its value. In regard to said written contract, he alleges that the same is what is commonly called a bill of lading; that same was in writing, and was signed by the Texas Central Railroad Company and by Thomas Taylor & Co., having indorsed thereon the following: ( " It is alleged that had said cotton been transported in reasonable time, it should have reached Galveston during the months of January or February, 1906.
Appellant further alleges that it has been the universal custom between the shippers of cotton in Texas and carriers of the same, when there has been a failure to promptly deliver cotton, that such failure should be made known to the carrier, or carriers, and that they be given a reasonable time to find such cotton, if they can do so, and if not, where the same has been carried over two or more lines, to ascertain which of said lines is responsible for the loss of such cotton, and for the carrier in fault to pay for the same; that this custom was known to appellees and acted upon by them in this: That appellant entered into correspondence with appellees in reference to said cotton, and that they promised him repeatedly in writing up to January 1, 1907, that they would take up said matter and see if said cotton could be found, and if not found, to pay appellant his reasonable damages for the breach of the contract of shipment.
1. We hold that the court did not err in holding that T. J. Freeman was not shown by the allegations of appellant's petition to be either a necessary or proper party to this suit.
2. We hold that if the failure to deliver said cotton within a reasonable time gave the appellant a cause of "action for trespass for injury done to his estate or property," or an "action for detaining his personal property and converting the same to their own use" (Rev. St. 1895, art. 3354, §§ 1, 2), still the statute of limitations did not run, under the allegations of appellant's petition, prior to January 1, 1907, if, indeed, it ran prior to February 3, 1908. Appellees may in fact have converted appellant's cotton on January 1, 1906, or prior thereto, but if they intentionally concealed such fact from appellant, and led him to believe otherwise, they will be estopped from asserting such conversion until such fact became known to appellant; and he will be excused from the exercise of diligence to ascertain such fact as long as they lulled him into fancied security by their promise to search for said cotton and deliver the same to him. It is an ancient maxim of the law that no one will be allowed to take advantage of his own wrong.
3. If the holding of the trial court that appellant's cause of action, as set forth in his petition, was barred by the two years' statute of limitation can be sustained, it must be upon the theory that his cause of action was either "an action of trespass for injury done to the estate or property of another," or "for detaining the personal property of another and converting such personal property to one's own use." No other provision of the two years' statute can possibly apply to the facts as alleged herein. Rev. St. art. 3354.
4. Is the failure of appellees to transport and deliver appellant's cotton, as alleged by him, a "trespass" upon his property? We concede that "trespass," as used in this statute, is not to be given that restricted or technical meaning which implies the use of force or violence, but is to be given that broader meaning which includes all tortious acts — "every act done which amounts to a transgression of the rights of another as to his person or property." Bear Bros. & Hirsh v. Marx & Kempner, 63 Tex. 302. Still, in order to constitute a trespass, there must be some act done, and not the mere failure to perform an act which one in duty owes to another. Trespass does not arise "from the mere omission to do a duty." Ricker, Lee & Co. v. Shoemaker, 81 Tex. 26, 16 S. W. 646; Austin v. Cameron & Co., 83 Tex. 353, 18 S. W. 437. "It must be an act committed, as contradistinguished...
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