Galveston, H. & S. A. Ry. Co. v. Tullis

• Decision Date: 13 June 1928
• Docket Number: (No. 8029.)
• Citation: 8 S.W.2d 247
• Parties: GALVESTON, H. & S. A. RY. CO. v. TULLIS.
• Court: Texas Court of Appeals

Page 247

8 S.W.2d 247

GALVESTON, H. & S. A. RY. CO. v. TULLIS.

(No. 8029.)

Court of Civil Appeals of Texas. San Antonio.

June 13, 1928.

Rehearing Denied July 11, 1928.

Appeal from District Court, Victoria County; John M. Green, Judge.

Action by R. A. Tullis against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Procter, Vandenberge, Crain & Mitchell, of Victoria, for appellant.

Fly & Ragsdale, of Victoria, for appellee.

COBBS, J.

Appellant's statement of the case is:

"The appellee, R. A. Tullis, as owner, doing business under the trade-name of Tullis & Co., sued appellant, the Galveston, Harrisburg & San Antonio Railway Company, in the district court, Victoria county, Tex., on the 22d day of January, 1927, for alleged damages to a carload shipment, consisting of 50 bales of mill-run cotton linters, shipped from Victoria, Tex., in the name of the South Texas Cotton Oil Company, as consignor, on the 8th day of October, 1925, to Crittenden & Eastman Company, as consignee, of Burlington, Iowa, at which place the shipment arrived some seven or eight days later, and was delivered on, to wit, the 17th day of October, 1925. The South Texas Cotton Oil Company rendered invoice, dated October 8, 1925, to Tullis & Co., covering the cotton linters so shipped, and in turn Tullis & Co. rendered invoice to Crittenden & Eastman at Burlington, Iowa, for the shipment of linters, subject to deduction of freight charges from Victoria, Tex., to Burlington, Iowa. The shipment was refused for alleged defects therein by Crittenden & Eastman Company upon arrival at Burlington, and such shipment was reconsigned and reshipped October 30, 1925, in the same car by Tullis & Co., to the Globe Bedding Company at Winnipeg, Manitoba."

Appellant filed proper responsive pleadings.

Plaintiff brought his suit, alleging the delivery of the 50 bales of linters to the defendant at Victoria, Tex., and that they were dry and clean and in suitable and proper marketable condition, and that they arrived at destination wet and musty and unfit for market at said point. In the nature of things it was impossible for plaintiff to know where, when, and how his goods were damaged, for they were within the exclusive management, custody, and control of defendant, and its common and connecting carriers from the time of delivery at Victoria until they reached destination, and the manner in which said linters were permitted to get wet was purely within the knowledge of defendant. In other words, plaintiff declared on his cause of action strictly under the doctrine of res ipsa loquitur, which, literally translated, is, "the thing speaks for itself," and is merely a short way of saying that the circumstances attendant upon accident are themselves of such a character as to justify a jury in inferring negligence as a cause of the accident.

The case was tried throughout without a bill of exceptions being taken by defendant, and the only bill of exceptions in the record is one taken by the plaintiff to the charge of the court; his alleged purpose being to have the record show that the plaintiff attempted to have the court in his charge define inherent vice and to limit the inherent vice to that pleaded by the defendant, and offered a special charge covering those matters, which charge was objected to by the defendant and was refused by the court, although plaintiff contends its effect would have been to set the case before the jury from the defendant's standpoint and preclude defendant from taking any exceptions to the charge as given to the jury.

There is no controversy as to the amount of the judgment; it being the exact difference between the amount plaintiff had his linters sold for at Burlington and what he eventually received.

The case was submitted to the jury upon only two issues, and, the jury finding those issues in favor of appellee, a judgment was entered thereon against appellant for a total sum of $1,789.62, with legal interest thereon from date.

The evidence shows that the 50 bales of mill-run cotton linters were loaded into the carrier's car at appellant's station at Victoria, Tex., in a dry, clean, and marketable condition, and reached Burlington, Iowa, in a "wet, musty, and worthless" condition, unfit for the purposes for which it was shipped. Under such circumstances the law infers negligence on the part of the carrier.

It was the duty of the carrier to transport the shipment with care and to cause an inspection of the car and its contents at reasonable times and at reasonable periods during its entire transportation and up to the time of its delivery. There is no sufficient proof of any proper inspection thereof, and the failure to do so shows a disregard to do its duty and a lack of ordinary care. G., H. & S. A. R. Co. v. Templeton, 87 Tex. 48, 26 S. W. 1066.

In this case it is shown that the linters were dry and clean when loaded, but when they reached their destination were wet and musty, and the floor of the car in which the cotton was shipped was wet. It is no defense to this negligent act to say that the goods were shipped in a new car, for it is the duty of the carrier to furnish proper cars. Of course, that is a circumstance to be passed upon by the jury, but it does not prove that the doors may not have fallen open from vibration, severe windstorm, or some other cause of negligence that permitted the rain. somewhere along the route, to pour into the car and wet the floor of the car as well as the contents. Appellant failed to meet this issue. It is true it was a new car, modernly equipped, but appellant failed to show that it was properly inspected from time to time, or that the doors...