Galveston, H. & S. A. Ry. Co. v. Wood, Hagenbarth Cattle Co.

• Decision Date: 01 May 1912
• Citation: 146 S.W. 538
• Parties: GALVESTON, H. & S. A. RY. CO. v. WOOD, HAGENBARTH CATTLE CO.
• Court: Texas Supreme Court

146 S.W. 538

GALVESTON, H. & S. A. RY. CO. v. WOOD, HAGENBARTH CATTLE CO.

Supreme Court of Texas.

May 1, 1912.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by the Wood, Hagenbarth Cattle Company against the Galveston, Harrisburg & San Antonio Railway Company. Judgment of the Court of Civil Appeals (130 S. W. 857), reversing a judgment for defendant and rendering a judgment for plaintiff, and defendant brings error. Reversed, and judgment of the district court affirmed.

Baker, Botts, Parker & Garwood and J. S. McEachin, all of Houston, and Beall & Kemp, of El Paso, for plaintiff in error. Bates McFarland and S. P. Weisiger, both of El Paso, for defendant in error.

PHILLIPS, J.

Wood, Hagenbarth Cattle Company, the defendant in error and the plaintiff below, in June, 1906, made four several shipments of cattle, consisting in all of 86 cars, from Valentine, Tex., to Columbus, N. M. The carriage from Valentine to El Paso was over the line of the plaintiff in error, and from El Paso to Columbus over that of the El Paso & Southwestern Railway. Each of the several shipments moved from Valentine to El Paso on a bill of lading issued by the plaintiff in error, by the terms of which it contracted to transport the cattle only to El Paso; the shipment being consigned in each bill to the defendant in error at El Paso, or to be there delivered to the connecting carrier of the plaintiff in error. Each shipment was rebilled at El Paso for transportation from that point to Columbus, N. M., over the line of the El Paso & Southwestern Railway, the connecting carrier.

The freight charges demanded and collected by the plaintiff in error for the transportation of the cattle from Valentine to El Paso, which charges were paid by the defendant in error under protest, were proper and lawful, if the shipments were interstate in character, but amounted to an overcharge of $12.75 per car, according to the tariffs of the Texas Railroad Commission, if they were intrastate. Contending that the movement of the cattle from Valentine to El Paso was purely an intrastate shipment, the defendant in error brought this suit against the plaintiff in error to recover the alleged freight overcharge, aggregating $1,096.50, and the further sum of $2,000 as statutory penalties under articles 4573 and 4575. Upon a trial, without a jury, the trial court found, both as a matter of fact and of law, that the shipments were interstate, and rendered judgment for the plaintiff in error. The honorable Court of Civil Appeals has reversed that judgment, and in its opinion holds the shipments from Valentine to El Paso to have been intrastate, having rendered judgment against the plaintiff in error for the alleged freight overcharge of $1,096.50, with interest, and aggregate penalties of $500. The question presented for our determination is whether the shipments were interstate or intrastate.

In its findings of fact, the trial court found that T. S. Kingsbury was the authorized agent and representative of the defendant in error, and empowered to contract for it in respect to these shipments; that some time prior to June, 1906, he purchased for it certain cattle at Valentine, Tex., to be shipped from Valentine to Columbus, N. M., and from there to be driven across the border into Mexico to the ranch of the defendant in error; that with such shipment in view, after the purchase of the cattle, Kingsbury went to El Paso, and there personally arranged with the agents of the two railway companies named for their shipment from Valentine to Columbus, it being agreed by the companies between themselves and with Kingsbury that they would furnish 25 cars for the shipment of the cattle, and, as they were able to furnish only 25 cars at that time, the entire shipment would have to be made in such manner as to enable them to move each consignment from Valentine to Columbus, to be there unloaded, and return the same cars to Valentine, to be there reloaded, and so on until the entire shipment was completed; that it was the intention of Kingsbury, when he bought the cattle and when he shipped them, to ship them from Valentine, Tex., direct to Columbus, N. M.; that each consignment of the cattle was transported direct from Valentine to Columbus in a continuous, uninterrupted journey, and in the same cars in which they were loaded at Valentine, without being unloaded at any intermediate point; that E. H. Anthony, another agent and representative of the defendant in error, under Kingsbury's directions, accompanied each of the consignments from Valentine to Columbus, and, acting on Kingsbury's instructions, directed the conductor in charge of each of the trains of plaintiff in error to deliver the cars at El Paso to the connecting carrier, El Paso & Southwestern Railway, for transportation over its line to Columbus.

Kingsbury testified as follows: "I suppose Anthony obeyed my instructions, and told the conductor of the G., H. & S. A. to turn the cars right over to the El Paso & Southwestern. * * * When I shipped them, I had no intention of their stopping in El Paso longer than to transfer them to the other road, * * * and when at Columbus to be received by the agent, and driven from there onto the ranch in Mexico."

Anthony, as a witness for the defendant in error, testified as follows: "I went with the cattle to Columbus. * * * I was on the train all the time from Valentine to El Paso. The same cars went right on through to Columbus. * * * The same cars were returned to Valentine for the next shipment. I would stay in Columbus just long enough to take the train back to El Paso. * * * It was the understanding between Mr. Kingsbury and myself that when I left Valentine with the train I was to take it right on through to Columbus, New Mexico."

As to whether the movement of the cattle from Valentine to El Paso was an interstate or intrastate shipment must be determined by the following questions: What was the ultimate destination of the shipment at the time it was made? Though the ultimate destination may have been without the state, was there any break or interruption in the journey by any delivery of the cattle by the carrier to the consignee at El Paso?

If, at the time the...