Davis v. Bassett

• Decision Date: 28 November 1923
• Docket Number: (No. 1529.)
• Citation: 257 S.W. 601
• Parties: DAVIS, Director General, etc., v. BASSETT.
• Court: Texas Court of Appeals

257 S.W. 601

DAVIS, Director General, etc., v. BASSETT.

(No. 1529.)

Court of Civil Appeals of Texas. El Paso.

November 28, 1923.

Rehearing Denied January 3, 1924.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Julian M. Bassett against James C. Davis, Agent, substituted for John Barton Payne, Director General. From a judgment for plaintiff, defendant appeals. Affirmed.

Kemp & Nagle, of El Paso, for appellant.

Jones, Hardie & Grambling, of El Paso, for appellee.

WALTHALL, J.

This is the second appeal of this case to this court. The disposition made of the case on the former appeal, and the issues there presented and discussed, are found in Payne v. Bassett (Tex. Civ. App.) 235 S. W. 917. The question there presented, as we understood it, was the liability of appellant for loss of property for failure to discharge its duty to transport and deliver certain silverware, where appellant, an interstate carrier, was not authorized to receive the goods for transportation; no rate for such transportation having been filed and published, as provided under U. S. Comp. St. § 8569, par. 7. By reason of the similarity of the facts there submitted, and the history of the transaction as there stated, and the case as now presented, we refer to the case and here omit much that might otherwise be shown.

Upon the case being reversed and rendered for trial, appellee substituted James C. Davis, Agent, party defendant in place of John Barton Payne, and asked no recovery against the railroad company. Otherwise the petition here as to the facts is substantially the same as on the former appeal, with the exception of the allegations in paragraph 7 of the present petition.

Paragraph 7 reads as follows:

"Plaintiff further says that if it should appear that the Galveston, Harrisburg & San Antonio Railroad Company and W. G. McAdoo, Director General of Railroads of the United States, were without authority to enter into the contract of transportation hereinabove referred to, and if it should appear, for any reason, that said contract is by the law or otherwise unauthorized, then nevertheless, plaintiff then says that said articles above mentioned were delivered to the said railroad company and to the said Director General of Railroads for the United States in good faith by plaintiff, and in reliance upon said contract and agreement, and that the said railroad company and the said Director General of Railroads received each and all of said articles of personal property in good faith upon the dates hereinbefore alleged, and plaintiff was entitled to have said articles returned to him within a reasonable time at Dryden, Texas, and was entitled to again have possession of said property, and plaintiff has heretofore made demand for return of said property, but the said railroad and the said Director General of said Railroads, failed and neglected to redeliver said property to plaintiff at Dryden, Texas, upon the dates hereinabove mentioned, and has at all times failed and neglected to redeliver said property at Dryden, Texas, upon the dates hereinabove mentioned, and has at all times failed and refused to redeliver said property, and said Director General of Railroads and said railroad company have converted all of said articles of personal property to their own use and failed and refused to redeliver the same to plaintiff in violation of plaintiff's rights and of the implied contract on their part to redeliver same to the plaintiff, and that same should have been redelivered to plaintiff at Dryden, Texas, on or about the 20th day of May, 1918, and there was no market for such articles there, and the reasonable value of said articles at Dryden, Texas, on March 2, 1918, and at all times until the 20th day of March, 1918, was $517.00, and by reason of the conversion of said goods by the said Director General of Railroads and said railroad company, and by reason of their refusal to redeliver said articles to plaintiff, and by reason of all of the defaults as hereinabove alleged plaintiff has been injured and damaged in the sum of five hundred and seventeen dollars ($517.00), together with interest at the rate of 6 per cent. per annum from the 20th day of March, 1918."

Appellant answered by general exception, and specially excepted because on the face of the petition it is shown that much of the shipment consisted of solid silverware alleged to have been shipped by freight, and under the law no recovery could be had therefor; further excepted as the petition seeks to recover for the value of goods received for shipment independent of the contract of shipment, and especially to the allegations in paragraph 7 of the petition on the ground that it set up a new cause of action, barred by the statute of limitation, general denial, and the rules and schedules filed with the Interstate Commerce Commission and duly approved, against the acceptance for shipment of silverware.

The case was tried without a jury, and the trial court made and filed his findings of fact and conclusions of law, and rendered judgment in favor of appellee.

The findings of fact as found by the court, and of which no error is assigned, are substantially as follows:

(1) On or about March 2, 1918, appellee at Dryden, Texas, delivered to W. G. McAdoo as Director General of Railroads the following property, stating same by items and value of each item which had the reasonable value, as stated, at Dryden, Texas, and including the items of the silverware, the value of which is sued for. (For brevity we omit itemizing.)

(2) The freight agent at Dryden was informed of the exact contents of the shipment, and received same for transportation to Chicago, issuing a bill of lading describing the shipment in question as "one box of cut glass." This shipment was never delivered to the consignee in Chicago.

(3) At the time of the receipt of the property there was a valid regulation of the Interstate Commerce Commission which governed the freight shipment in question: "Rule 3. Unless otherwise provided the following property will not be accepted: [Stating other items not involved here and concluding] * * * Precious metals or articles manufactured therefrom. * * *"

(4) Under the rules of the Interstate Commerce Commission applying to this carrier it is nowhere provided that articles of solid silverware should or could be accepted. The rule as above stated applies to the shipment in question in this suit.

(5) Within about two weeks after the shipment in question plaintiff asked the agent at Dryden, Texas, for the return of the articles embraced in the shipment, but same has never been returned.

(6) The package containing the articles as above was received by the agent and placed on the carrier's train at Dryden, Texas.

(7) The aggregate value at Dryden and Chicago, on the dates relevant to this entire shipment, was $517. The value of the portion thereof which consisted of articles manufactured from silver was $428.

As several of the propositions assign error to the trial court's conclusion of law, we state them here. They are substantially as follows:

(1) The carrier could not lawfully contract to carry to Chicago the silverware in the shipment. The bill of lading which issued was, as to silverware, void. It had the lawful power and authority to contract to carry the articles in the shipment other than silverware, and it having failed to deliver same it is bound to plaintiff to the extent of the reasonable value thereof at Chicago, Ill. which is found in the findings of fact to be $89.

(2) As to the silverware in the shipment a carriage of same by defendant was unlawful. Its possession thereof was not unlawful.

(3) Where a public carrier receives goods for the purpose of transportation, and it has not the lawful right to so receive and carry same, an implied contract arises to redeliver the goods to the consignor on demand. The receipt of the goods by the defendant under such circumstances is sufficient evidence to establish the implied or quasi contract to return same.

The failure to redeliver on demand establishes prima facie a breach of the legal duty imposed by such implied or constructive contract. If the carrier has satisfied its legal duty, or same has been discharged or excused, it is incumbent upon defendant to allege such justification or excuse, and to establish same by proof.

(4) The vital and essential facts upon which plaintiff relies in his second amended original petition having been stated in both his original petition...