Davis, Federal Agent v. Standard Rice Co.

• Decision Date: 09 June 1926
• Docket Number: (No. 8720.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 293 S.W. 593
• Parties: DAVIS, Federal Agent, v. STANDARD RICE CO., Inc.
• Court: Texas Court of Appeals

293 S.W. 593

DAVIS, Federal Agent, v. STANDARD RICE CO., Inc.

(No. 8720.)^*

Court of Civil Appeals of Texas. Galveston.

June 9, 1926.

Rehearing Granted in part February 10, 1927.

Appellee's Motion for Rehearing Denied March 25, 1927.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Standard Rice Company, Inc., against James C. Davis, Federal Agent, substituted for Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for appellant.

B. F. Louis and A. G. Haigh, both of Houston, for appellee.

PLEASANTS, C. J.

Appellee brought this suit to recover damages for injury to seven carloads of rice shipped over railways operated and controlled by the defendant. The suit was originally against Walker D. Hines, Director General of Railroads, under the United States Railroad Administration. By supplemental petition filed April 6, 1923, appellant James C. Davis was made defendant; he having been appointed successor to the original defendant after the suit was filed.

The claims for damages set out in the petition are in substance as follows:

"First. That on or about December 14, 1918, Standard Rice Company purchased from the Ganado Mill & Elevator Company a carload of rice containing 76,000 pounds of No. 1 Blue Rose rice for transportation from Ganado, Tex., to Houston, Tex., and delivery at Houston to the plaintiff. That owing to the negligence of the defendant the rice arrived in Houston and was delivered to the plaintiff in a badly damaged condition, same being wet and rotten; that the market value of said rice at the time of delivery in Houston, had same been delivered in good order, would have been $3,307.40; that, owing to the damaged condition of said rice, the plaintiff, in an effort to minimize the loss from said shipment, milled the said carload of rice and sold, for the account of the defendant, the clean rice resulting from such milling for the sum of $2,353.87; that the plaintiff's damages from this car of rice amounted to $954.53.

"Second. That on or about the 21st day of January, 1919, there was delivered to the defendant, appellant herein, at Lissie, Tex., one carload of rice weighing 73,300 pounds, being bulk rough rice, for transportation and delivery to the plaintiff at Houston, Tex.; that by reason of the negligence of the defendant the said carload of rice became damaged while in transit and on its arrival at Houston it was in a badly damaged condition; that the plaintiff, in order to minimize the damage from said shipment, milled the damaged rice; that the said rice, in the condition in which it should have been received, was of the reasonable market value of $2,794.72; that the net sum realized from the sale of said milled rice was $1,761.13; that by reason of the negligence of the defendant the plaintiff had sustained damage in the sum of $1,033.59.

"Third. That on or about the 9th day of January, 1919, there was delivered to the defendant company at East Benard, Tex., a carload of rice for transportation to Houston and delivery to the plaintiff; that said carload of rice arrived at Houston in a badly damaged condition; that in order to minimize the loss said rice was milled by the plaintiff for the account of the defendant; that said rice, in the condition in which it should have been delivered to the plaintiff at Houston, was of the reasonable market value of $1,632; that the net amount realized from the sale of said milled rice was the sum of $1,196.22; that the plaintiff sustained damage in the sum of $453.78.

"Fourth. That on or about December 20, 1918, there was delivered to the defendant a carload of bulk rice for transportation and delivery to the plaintiff at Houston; that owing to the negligence of the defendant, its agents, and employees, said rice, when it reached Houston and was delivered to the plaintiff, was in a badly damaged condition; that plaintiff, in order to minimize the loss, milled the damaged rice for the account of the defendant; that the rice in the condition in which it should have been received at Houston, Tex., was of the reasonable market value of $2,408.31; that the net amount realized from the sale of said milled rice was $1,704.86; that by reason of the negligence of the defendant the plaintiff was damaged in the sum of $703.45.

"Fifth. That on or about December 18, 1918, there was delivered by the Old River Company, as agent of plaintiff, delivered to the defendant company one carload of rice, at Mont Belview, Tex., for transportation and delivery to the plaintiff at Houston, Tex.; that, upon arrival of said rice at Houston, the same was in a damaged condition; that the plaintiff, in an effort to minimize the loss resulting from said shipment, milled said damaged rice for the account of defendant; that said rice in the condition in which it should have been received by plaintiff at Houston was of the reasonable market value of $3,120.41; that the net amount realized from the sale of the milled rice was $2,206.46; that the plaintiff sustained damages by reason of the condition of said rice in the sum of $914.35.

"Sixth. That on or about December 18, 1918, there was delivered to the defendant company by M. Thellman and Ganado Mill & Elevator Company, as agents for plaintiff, at Ganado, Tex., one carload of rice for transportation and delivery to plaintiff at Houston; that at the time the rice arrived in Houston it was in a badly damaged condition; that plaintiff, in order to minimize the loss, milled the damaged rice for the account of the defendant; that the said rice, in the condition in which it should have been received by plaintiff at Houston, was of the reasonable market value of $2,994.10; that the net amount resulting from the sale of such rice was $2,260.92; that the plaintiff sustained damages by reason of the negligence of the defendant in the sum of $733.18.

"Seventh. That on or about January 7, 1919, there was delivered to the defendant company at Ganado, Tex., by the Ganado Mill & Elevator Company, as agent for plaintiff, one carload of rice, to be transported and delivered to the plaintiff at Houston, Tex.; that said carload of rice was damaged in shipment, and was delivered to plaintiff at Houston in a badly damaged condition; that the plaintiff, in an effort to minimize the loss, milled said damaged rice for the account of the defendant; that said rice, in the condition in which it should have been received at Houston, Tex., was of the reasonable market value of $2,660; that the net amount realized from the sale of said milled rice was $1,890; that the plaintiff sustained damages by reason of the negligence of the defendant in the sum of $769.01."

The total amount of damages claimed in the original petition was $5,543.89, but by amendment filed in February, 1924, plaintiff alleged its measure of damage to be the difference between the cost price of the rice with the freight and reconditioning charges added and the value of the rice after reconditioning, which difference was alleged to be the sum of $6,385.13.

The defendant, Walker D. Hines, Director General, answered by general demurrer and general denial. This answer was filed on December 2, 1919. Thereafter, on January 6, 1920, the Galveston, Harrisburg & San Antonio Railway Company and the Texas & New Orleans Railway Company filed a joint pleading in the case which they designated an answer to plaintiff's petition, and in which they demur generally to the petition as showing no cause of action against them. They further specially plead in abatement of plaintiff's suit that the several shipments of rice, for injury to which plaintiff claims damages, each occurred during the time the defendant railways were in the possession and control of the government of the United States and were being operated by the United States Director of Railroads by and through his agents and servants "actually operating and controlling said lines of railroad and all the properties incident to such operation, including the train or trains in question, and these defendants show that none of the general officers, and no agent or servant authorized to represent them in any capacity whatsoever, had anything whatever to do with the transportation complained of, as must be conclusively inferred from the averments in plaintiff's petition. Wherefore, premises considered, these defendants pray that the motion be granted and that the court abate as to them this suit and discharge them with their costs." This answer also specially excepts to the petition on the grounds stated in the plea in abatement and further reiterates the facts stated in the plea in bar of plaintiff's right to recover against the defendant railways.

Plaintiff's supplemental petition making appellant a party defendant, which has been before referred to, alleges that plaintiff adopts its former pleadings against "the said railway company and Director General of Railroads, and the same in every material statement applies to this defendant, James C. Davis." Appellant answers only by excepting to plaintiff's supplemental petition, on the ground that plaintiff's right to make him a party to the suit in substitution of the original defendant was barred because more than one year had elapsed after original defendant had ceased to be Director General of Railroads before the filing of the supplemental petition and "more than two years have elapsed since the time James C. Davis was named as federal agent for the litigation of claims growing out of the federal operation of railroads, and that more than two years have elapsed since the passage of the Transportation Act of March 1, 1920, naming James C. Davis as such agent." He also specially pleaded the two years' statute of limitation in bar of plaintiff's suit. The trial in the court below without a jury resulted in favor of appellee for the sum...