Ft. Worth & D. C. Ry. Co. v. Strickland

• Decision Date: 08 January 1919
• Docket Number: (No. 1442.)
• Citation: 208 S.W. 410
• Parties: FT. WORTH & D. C. RY. CO. v. STRICKLAND.
• Court: Texas Court of Appeals

Page 410

208 S.W. 410

FT. WORTH & D. C. RY. CO. v. STRICKLAND.

(No. 1442.)

Court of Civil Appeals of Texas. Amarillo.

January 8, 1919.

Rehearing Denied February 5, 1919.

Appeal from Wilbarger County Court; E. L. McHugh, Judge.

Action by John L. Strickland against the Ft. Worth & Denver City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bonner & Storey, of Vernon, and Thompson, Barwise, Wharton & Hiner, of Ft. Worth, for appellant.

Berry, Stokes & Morgan, of Vernon, for appellee.

HUFF, C. J.

Strickland, appellee, sued the appellant railway company for damages for failure to furnish a car in which to ship poultry, which car was to be placed on the road switch at Chillicothe, Tex., and from that station to be shipped to New York. It is alleged the application was in writing and made December 28, 1916; that the car was to be furnished January 3, 1917, but that it was not furnished until January 21, 1917. There was a delay of 18 days and consequent damages for extra feed, $289.90, extra labor, an extra man to care for the poultry, $24, loss and shrinkage, $101.91, which was caused by the delay. The appellant answered that the appellee made application to its local agent at Vernon, Tex., December 28, 1916, for a car in which to load and ship poultry from Vernon, Tex., to New York, and desired the car set at Chillicothe for loading January 3, 1917; that the particular car desired by appellee was not owned by appellant, but that such car was of peculiar construction and was furnished appellant and other railway companies, when they applied for them, by the Live Poultry Transit Company, of Chicago, Ill., and this fact was well known to appellee when he applied for the car; that it did take immediate steps to secure the car and was unable to secure it until about the 20th of January, 1917; that it did all it could and that it could not furnish it at an earlier date and used all diligence in its power, but on account of the limited number of such cars and the demand on the company it was unable to furnish the car sooner; that it did not agree to get the car on any day certain, and was only required to use due diligence to furnish the same; that it being for an interstate shipment it was not required to do more than it did to secure the same; that it used all the diligence to secure the car within a reasonable time and did secure the car within a reasonable time.

By a first supplemental petition appellee replied, denying due diligence on the part of appellant, alleging that from the time of the application with the agent to the 3d of January was a reasonable time within which to furnish the car; that it did not use reasonable diligence to furnish the car January 3d, or at any subsequent date; that said date was a reasonable time, and appellant failed thereafter to furnish the car within a reasonable time; that the failure of appellant to use diligence to furnish the car within a reasonable time after December 28, 1916, the date of the application, occasioned the damages set out. By a supplemental answer the appellant alleged that it was not required to furnish the car on the date requested because the application was for a Live Poultry Transit Company car, to be loaded at Chillicothe, and the application was made to the local agent at Vernon, Tex., and was not binding upon appellant; that for such car the application was not binding on it to furnish the same within a reasonable time or any other time. By a second supplemental petition appellee alleged, in answer to appellant's supplement, that appellee and its agents commonly received applications for cars to be loaded at stations other than the station where it was filed; that appellant received the application through its agent, Allman; that the proper officer in charge of providing cars for shipment received the application from the agent at Vernon, and that appellant, through its officers, acted upon such application, thereby waiving any technical irregularity as to the place from which it was made; that the car ordered was the line of cars commonly in use for poultry shipments in that part of the country; that appellant tendered no other of such character; that the application was made out by appellant's agent and only signed by the appellee; that any car suitable for such shipment would have been acceptable to him.

The first assignment is based on a requested charge for an instructed verdict. Under this assignment are three propositions. The first is to the effect that notice to the local station agent at Vernon, Tex., for a car to be loaded at Chillicothe was not binding on appellant in the absence of proof that he was authorized to receive the notice; that such notice must be given to the superintendent or person in charge of transportation at the point where the car is desired. This case is not based on an alleged contract, but is founded upon a failure of duty to furnish a car within a reasonable time after application therefor. The agent at Vernon did not purport to make a contract, but only received the application, which he transmitted to the proper authority. It appears that appellant contends that there was no pleading raising the issue for a car within a reasonable time thereafter. The original petition, together with the answer and the supplements, clearly presents that as the issue, and in fact this was the issue submitted by the court. The agent who took the application testified that, while the application states the car was to be loaded at Chillicothe, the appellee told him at that time that it would be loaded in part at Chillicothe and finished loading at Vernon, and that in sending the application on that day he wired J. A. Murphy, the trainmaster, among other things: "Car to stop Vernon to finish loading." This witness further testified:

"J. A. Murphy was the trainmaster and was the proper employé of the company to whom it was my duty as local agent to forward the application for this car."

The application is dated Vernon, Tex., 12/28/16, and addressed to the agent at that place, and reads:

"Sir: I desire to ship one car of live poultry from Vernon to New York via * * * Ry., which I desire to load at Chillicothe station at 8 a. m., January 3, 1917. Please furnish a car for this shipment at the time named — L. P. T. Co. car."

This application has a notation that agents were not authorized to make promises or agreements to furnish cars for any specified time, and a statement by Strickland that he had read the notice and that there was no agreement that cars would be furnished on the date desired, or any other specified time. The agent also signed a statement to the effect that agents will, under no circumstances, agree that cars ordered will be furnished at the time specified in the order, but may promise every reasonable effort will be made to fill such order. The agent further testified:

"The railway company does not own this make of car, but they are owned by the Live Poultry Company of Chicago. There are two or three companies that own and handle this kind of car, but the Denver (appellant) usually got its cars from this particular company. The application was made to the company or to the connecting carriers when a request to furnish this car was received by defendant."

He stated also that cars were scarce during the months of December and January and hard to procure, and that he did not promise to get the car for any specified time. The telegrams in the record show that the application was forwarded to the trainmaster, who acted on the same and wired for the car and sought to obtain the same, and appellant finally furnished the car on the application of appellee. The application for the car was to ship poultry from Vernon to New York, but the car was to be partly loaded at Chillicothe and finished at Vernon. We are inclined to believe under the circumstances of this case the agent at Vernon had authority to make the contract for the shipment and to receive the application for the car at that point. This we do not think would be in conflict with the holdings in the cases of Railway Co. v. Cox, 103 S. W. 1121, and Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518. The effect of the holdings in those cases and others is that one local agent has no implied authority to contract or bind his company concerning matters beyond his own station. The evidence in this case is that the local agent had authority to receive the application and that it was his duty to transmit it to the trainmaster, who was the proper officer to receive such application so forwarded. Whitley v. Railway Co., 183 S. W. 36. Further, it is pleaded and proven that the trainmaster received the order, acted on it, and finally furnished the car on the application. If there was any irregularity in making the application, the appellant, through its proper officer, waived it.

The second and third propositions under this assignment assert that, appellee having applied for a Live Poultry Transit Company car, appellant was not bound to furnish such car at all, as no such duty rested upon it and no contract was alleged or proven, and further states that neither state nor national laws require a railway to furnish a shipper any particular make of cars, regardless of the time when the same is desired. This case is not a suit upon a contract to furnish the car but upon its duty as a carrier to furnish cars for transportation of poultry. Its duty in this particular depends upon whether it was the custom to furnish such cars, or whether the law imposed upon it the duty to provide facilities for transporting poultry along its line of road. Appellant alleged that the car applied for was furnished it by the Live Poultry Transit Company when applied for. The agent testified appellant usually got its cars from that company, and either applied to it direct or to connecting carriers. The evidence in this case shows that the poultry industry was...