East Texas Motor Fr. L. v. Franklin County Dist. Co.

• Decision Date: 01 June 1944
• Docket Number: No. 4383.,4383.
• Parties: EAST TEXAS MOTOR FREIGHT LINES v. FRANKLIN COUNTY DISTILLING CO.
• Court: Texas Court of Appeals

184 S.W.2d 505

EAST TEXAS MOTOR FREIGHT LINES v. FRANKLIN COUNTY DISTILLING CO.

No. 4383.

Court of Civil Appeals of Texas. El Paso.

June 1, 1944.

Rehearing Denied June 15, 1944.

Appeal from County Court at Law No. 1, Dallas County; Tom Nash, Judge.

Action by East Texas Motor Freight Lines against Franklin County Distilling Company to recover freight charges. From a portion of the judgment denying a recovery of part of the amount sued for, plaintiff appeals.

Reversed and rendered.

Callaway & Reed and O. D. Montgomery, all of Dallas, for appellant.

Emil Corenbleth, of Dallas, for appellee.

PRICE, Chief Justice.

This is an appeal by East Texas Motor Freight Lines from a portion of a judgment of the Dallas County Court at Law No. 1 denying it a recovery from defendant, Franklin County Distilling Company, in the sum of $281.84, with interest. As plaintiff, East Texas Motor Freight Lines sued K. Taylor Distilling Company, now Franklin County Distilling Company, Brown-Forman Distilling Company, Douglas Guardian Warehouse Corporation, and Progress Wholesale Drug Company, to recover freight charges for three shipments of liquor, one consigned by the Distilling Company to Brown-Forman Company, one by said Distilling Company to the Douglas Guardian Warehouse Corporation, the third to the Progress Wholesale Drug Company. By amendment, the suit was dismissed as to the Progress Wholesale Drug Company on the ground that it was insolvent. The plaintiff was denied a judgment as against the Brown-Forman Distilling Company, and likewise as to the Douglas Guardian Warehouse Corporation. It was allowed a recovery in the sum of $275.70, with interest, against the Franklin County Distilling Company; denied a judgment against this latter Company in the sum of $281.84, which it sought to recover.

The only controversy in this appeal is between East Texas Motor Freight Lines and Franklin County Distilling Company. The former will be designated hereinafter as appellant, and the latter as appellee.

Trial was to the court without a jury. On motion of appellant the court made up and filed findings of fact and conclusions of law. The appeal is before this court on these findings.

We shall confine the discussion of this case to the one shipment of September 19, 1939, which is alone involved in this appeal.

The findings of the trial court are admirable for their clarity and comprehensiveness. It is not claimed by either party that there is not a finding on each issue raised by the pleadings and evidence; there is no finding attacked as unsupported by the evidence. The sole contention of the appellant is that there was error in applying the law to the facts found as to the freight charges for the one shipment.

It was found in substance that the appellant was a common motor carrier of freight engaged in interstate commerce; that in connection with its connecting carriers at Memphis, Tennessee, it transported for appellee 364 cases of liquor from Frankfort, Kentucky, to Dallas, Texas, and delivered same to the Progress Wholesale Drug Company, the consignee; that the lawful freight charges were in the sum of $281.84, and that neither appellee nor consignee had paid such charges. In connection with this shipment appellant issued to appellee a bill of lading, in which Progress Wholesale Drug Company was named as consignee. From the facts found it is fairly inferable that this bill of lading was in accordance with the law and applicable regulations of the Interstate Commerce Commission. Among others, it contained these provisions:

"Subject to Section 7 of conditions, if this shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement:

"`The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges.

                                      _________________'"
                

The consignor did not sign the nonrecourse provision in the bill of lading.

Section 7 of the bill of lading is copied in full in the findings. It is very long, and only the salient provisions thereof need be stated. It provides that the carrier is not to deliver goods to consignee until all freight charges are paid; provides that if consignor so stipulated by signing in the place in the bill for that purpose, the consignor will not be liable for delivering the freight to consignee without exacting payment of freight charges.

In the findings is a copy of the order of the Interstate Commerce Commission authorizing carriers to extend credit to consignee for seven days under certain prescribed conditions. The findings further reflect that appellant...