Dillingham v. Fischl

• Decision Date: 15 December 1892
• Citation: 21 S.W. 554
• Parties: DILLINGHAM v. FISCHL.
• Court: Texas Court of Appeals

21 S.W. 554

DILLINGHAM v. FISCHL.

Court of Civil Appeals of Texas.

December 15, 1892.

Appeal from district court, Washington county; C. C. Garrett, Judge.

Action by Joseph Fischl against Charles Dillingham, as receiver of the Houston & Texas Central Railway Company, to recover the statutory penalty for failure to deliver freight on tender of the charges named in the bill of lading. From a judgment for plaintiff, defendant appeals. Reversed.

O. T. Holt, for appellant. Searcy & Garrett, for appellee.

PLEASANTS, J.

This is an action in which the appellee, Joseph Fischl, who was the plaintiff in the court below, sued the appellant, Charles Dillingham, as receiver of the Houston & Texas Central Railway Company, who was defendant in the court below, in the district court of Washington county, on the 22d day of February, 1890, to recover the statutory penalty for refusing to deliver a car of flour shipped from St. Louis, Mo., to Brenham, Tex., directed to appellee, by the terms of the bill of lading. The penalty sued for was the sum of $94.88, the amount specified in the bill of lading, for each day the flour was detained. The appellee was a merchant doing business in Brenham, Tex.; and on or about the 16th day of December, 1889, appellee purchased a car of flour, weighing 23,720 pounds, from the Kaufman Milling Company, in St. Louis, Mo. That the contract of purchase was made through one Slater, who was the agent of the Kaufman Milling Company at Brenham, Tex.; and on or about the said 16th day of December, 1889, the Kaufman Milling Company, acting for and on behalf of the appellee, Joseph Fischl, delivered said car of flour to the St. Louis, Arkansas & Texas Railway, which was then and there a common carrier from the city of St. Louis, Mo., into the state of Texas, making connection with the Gulf, Colorado & Santa Fe Railroad and the Houston & Texas Central Railway, leading to the city of Brenham, in the state of Texas. The said St. Louis, Arkansas & Texas Railway Company issued, executed, and delivered to appellee's agent, the Kaufman Milling Company, in the city of St. Louis, a bill of lading whereby it acknowledged it had received said car of flour for shipment from St. Louis, Mo., to Brenham, Tex., and it appeared from said bill of lading that the rate on said flour was 40 cents per 100 pounds via the Gulf, Colorado & Santa Fe Railroad from St. Louis to Brenham, Tex.; and that said freight was to be carried via said railway, (the Gulf, Colorado & Santa Fe,) and when said car of flour arrived at its destination, Brenham, Tex., the appellee tendered the appellant the sum of $94.88, which was the amount specified in the bill of lading, which amount was declined, and 53 cents per 100, the established rate, demanded, which was refused by appellee. The defendant answered by a general and special demurrer, and general and special answer. The special demurrer was sustained. The special answer alleged that said car of flour was shipped from St. Louis, Mo., to Brenham, Tex.; that, when said car of flour reached and arrived at Corsicana, it was, in the due course of business, turned over to defendant for transportation to Brenham, and that said flour was carried to Brenham within a reasonable time, and in good order and condition; that after said car of flour arrived at Brenham, its destination, the same was tendered to appellee, demanding of him the regular schedule rate, which he refused to pay, and left said flour in the possession of appellant; that appellant, before and at the time of the shipment of said flour, had established schedule rates of freight as required by the act of congress, and that the schedule rate on flour from St. Louis Mo., to Brenham, Tex., was 53 cents per 100 pounds, via the Houston & Texas Central Railway; that the said St. Louis, Arkansas & Texas Railway did not run into the city of Brenham, and all goods and merchandise from Brenham via the Houston & Texas Central Railway were delivered to appellant at Corsicana, a station on the line of its road. And the appellant further alleged and charged that after said flour arrived in the city of Brenham, its destination, and after appellee refused to pay the schedule charges due thereon, that his (the appellee's) agent, or some person for him, in St. Louis, Mo., the Kaufman Milling Company, telegraphed said appellee, Joseph Fischl, to pay schedule charges demanded of him by appellant, and that they would protect and hold appellee harmless, all of which appellee refused to do; but said flour remained in the possession of appellant for more than a month, when the appellee paid the schedule charges, and took said flour. The appellee demanded a jury. Said cause was tried, and resulted in a verdict and judgment for appellee for $4,079.84. A motion for a new trial was made and overruled, and notice of appeal given.

Appellant's first assignment of errors is as follows: "The court erred in not permitting the defendant, Dillingham, to establish and prove the fact by the plaintiff, and other competent testimony, that the said Kaufman Milling Company proposed and would have held the plaintiff, Fischl, harmless, and offered to pay the difference between 40 and 53 cents per 100 pounds on the car of flour." We are of the opinion that this assignment presents a proposition which cannot be sustained, and that the court did not err in excluding the evidence offered by the appellant to show that the appellee would not consent to the difference between the rate of freight specified in the bill of lading, and that the demand by the appellant might be paid by the Kaufman Milling Company. If the appellant be liable for the penalty imposed by the statute for demanding more freight than that named in the bill of lading, and refusing to deliver the freight to consignee until the freight demanded was paid by the consignee, the latter could not be deprived of the right to recover the penalty by the willingness of a third party to pay the difference in the freight. Had this difference been paid by the shipper to the appellant, and appellant had then made a tender to appellee of the goods, upon payment by the latter of the...