Elder, Dempster & Co. v. St. Louis S. W. Ry. Co. of Texas

• Decision Date: 19 March 1913
• Citation: 154 S.W. 975
• Parties: ELDER, DEMPSTER & CO. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
• Court: Texas Supreme Court

154 S.W. 975

ELDER, DEMPSTER & CO. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.

Supreme Court of Texas.

March 19, 1913.

Certified Question from Court of Civil Appeals of First Supreme Judicial District.

Action by Elder, Dempster & Co. against the St. Louis Southwestern Railway Company of Texas and others. From a judgment sustaining a demurrer to the petition, plaintiffs appealed to the Court of Civil Appeals, by which a question was certified to the Supreme Court.

Edward F. Harris and Harris & Harris, all of Galveston, for appellants. E. B. Perkins, of Dallas, and Wilson, Dabney & King, of Houston, for appellees.

HAWKINS, J.

The Court of Civil Appeals for the First Supreme Judicial District has certified for our decision a question which, with its statement of the case, is as follows:

"This is a suit in the county court of Galveston county by Elder, Dempster & Co. against the St. Louis Southwestern Railway Company of Texas and the International & Great Northern Railway Company to recover $550, the alleged value of eight bales of cotton.

"For a full understanding of the question presented, it is necessary to set out a large portion of plaintiffs' petition as follows:

"`That on, to wit, the 20th day of November, 1906, there were delivered to defendant St. Louis Southwestern Railway Company of Texas, at Gatesville, Tex., by Gussoni & Co., 50 bales of cotton marked "X O I E," which were received by said defendant to be delivered to the said shippers' order at Galveston, Tex., notify J. H. W. Steele, Galveston, Tex., for which cotton the said defendant executed and delivered a through bill of lading, No. 256, from Gatesville, Tex., to Galveston, Tex.; that thereafter the said Gussoni & Co. assigned and delivered said bill of lading and all rights thereunder to the plaintiffs, and such assignment was and is evidenced by the indorsement on the back of said bill of lading, and the plaintiffs herein are the lawful owners and holders of said bill of lading and all rights accruing thereunder.

"`That said shipment was made at agreed and through rates for the whole route, and said bill of lading was recognized, acquiesced in, and acted upon by both of said defendant railroads; and 42 bales of said cotton, and no more, were by the defendants delivered to these plaintiffs in Galveston, Tex., on various dates between December 21, 1906, and April 18, 1907, and in due course of business the remaining undelivered quantity of eight bales of cotton should also have been delivered on or about the 18th day of April, 1907, said date being a reasonable time, under the conditions then existing, for the delivery of said cotton at Galveston, Tex.; but both of the defendants utterly failed to deliver the said eight bales of cotton as they were bound to do, and never have delivered the said eight bales of cotton, or any part thereof, whereby the said cotton was wholly lost to the plaintiffs, to the damage of plaintiffs in the sum of $550.

"`That, at the request of the defendants, the said bill of lading was by the plaintiff deposited with the defendant International & Great Northern Railroad Company, and both of the defendants are hereby notified to produce the same at the trial of this cause.

"`That a true and correct copy of said bill of lading cannot be attached hereto, because the plaintiffs have no such copy in their possession, and the original bill of lading is not in their possession, but in the possession of the defendants, as above stated.

"`That the plaintiffs allege that the damage hereinbefore set forth was caused them by the breach of the contract of carriage entered into in writing between the plaintiffs and the defendants under said bill of lading, and that said bill of lading, in writing, bound and obligated the defendants, and each of them, to safely deliver said cotton, as hereinbefore stated, at Galveston, Tex.; the plaintiffs alleging, as hereinbefore set out, that said bill of lading was issued by the St. Louis Southwestern Railway Company of Texas, and recognized, acquiesced in, and acted upon by both of said defendant railroads.'

"The original petition was filed February 23, 1910. To this petition the defendants interposed a special exception that it appeared from the allegations of the petition that the plaintiffs' cause of action was barred by the statute of limitation of two years. This exception was sustained by the trial court; and, the plaintiffs declining to amend, the cause was dismissed.

"The single question presented by the appeal is whether the cause of action stated in the petition comes under the provisions of the two or four years' statute of limitation. This question was decided adversely to appellant by the Court of Civil Appeals of the Fourth District, in the case of G., H. & S. A. Ry. Co. v. Clemons, 19 Tex. Civ. App. 452, 47 S. W. 731, and by the Court of Civil Appeals of the Third District in Davies v. Texas Central Ry. Co., 133 S. W. 295, adversely to appellees' contention in the present case. We are unable to distinguish these two cases, or to distinguish the present case from either of them, on this point. We approve the decision of the Davies Case in the main for the reasons stated in the opinion; but such decision of the present case would necessarily conflict with the decision in the Clemons Case, as is clearly shown by the petition in that case, a copy of which we have before us. This, in our opinion, requires us, under section 1, c. 98, of the Acts of the Twenty-Sixth Legislature (Acts 1899, p. 170; R. S. 1911, art. 1623), to certify the question to the Supreme Court. For this reason, and also under the provisions of article 1043 (R. S. 1911, art. 1619), inasmuch as the question presented is of general importance, upon which the Courts of Civil Appeals are evidently not agreed, and the decision of this court in the present case is final, we deem it advisable to submit to your honorable court the following question:

"Question: Did the district court err in sustaining the special exception to the petition?"

Inasmuch as it appears from the brief for appellants, and even from the first paragraph of the foregoing statement by the Court of Civil Appeals, that this cause came up from the county court of Galveston county, we will treat as clerical and immaterial error the reference in the certified question to the district court.

The contentions of the parties are, in substance, as follows: Appellants, through their attorneys, insist that "debt," as used in our statutes of limitation, includes damages for breach of a written contract; that the cause of action as stated in the petition is ex contractu, and not ex delicto; that under the agreement of the initial carrier for through shipment of the cotton, from Gatesville to Galveston, recognized, acquiesced in, and acted upon by its connecting carrier, damages for a breach of that agreement constitute an indebtedness which is both evidenced by and founded upon a contract in writing, to wit, the bill of lading; that the petition declares upon such written contract, and seeks recovery of damages for an alleged breach thereof, rather than for conversion of the cotton or for neglect of the carriers to perform a statutory duty; and that consequently the statute of four years' limitation (Revised Statutes 1895, art. 3356, subd. 1) applies. It is as follows: "There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: (1) Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing."

Appellees, through their attorneys, insist that the cause of action is necessarily ex delicto, in tort, for conversion of the cotton, or in assumpsit, for failure in the performance of a statutory duty. They concede that "debt," as used in our limitation statutes, includes damages for breach of a written contract; but they contend that, if this be an action for debt (which they deny), it is an action on a contract not in writing, or if in writing, not wholly in writing; that the bill of lading is practically nothing more than a receipt for the goods—a mere fictional contract, a contract in name only—and that the real obligation of the carriers arises entirely out of their statutory duty to receive and transport the goods; and that, under any such circumstances, the action is barred by the statute of two years' limitation. It embraces the following provisions: "Art. 3354. There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: (4) Actions for debt where the indebtedness is not evidenced by a contract in writing." Revised Statutes 1895. The issue as to which statute controls is tersely presented by the certified question.

That "actions for debt," as used in said statutes, include suits brought to recover money for the breach of a contract in writing, without regard for the technical distinction between debt and damages, is well settled. The Congress of the republic in 1841 enacted a statute of limitation of four years, which embraced "all actions of debt grounded upon any contract in writing." Gam. Laws of Tex. vol. 2, p. 627. It remained in force until it was carried into the Revised Statutes of 1879 in amended form, embracing: "(1) Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing"—and in that amended form it has remained in force to this day. Revised Statutes 1879, art. 3205; R. S. 1895, art. 3356; R. S. 1911, art. 5688.

The original statute was construed by this court in 1856, in Robinson v. Varnell, 16 Tex. 382; the action being upon a written contract and for a sum of money for the hire of a slave and for damages for failure to redeliver him on January 1, 1849. In disposing of the case, this court said with...