Galveston, H. & S. A. Ry. Co. v. American Grocery Co.

• Decision Date: 12 March 1930
• Docket Number: No. 1138-5423.,1138-5423.
• Citation: 25 S.W.2d 588
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. AMERICAN GROCERY CO. et al.
• Court: Texas Supreme Court

Page 588

25 S.W.2d 588

GALVESTON, H. & S. A. RY. CO. et al. v. AMERICAN GROCERY CO. et al.

No. 1138-5423.

Commission of Appeals of Texas, Section B.

March 12, 1930.

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

Action by the American Grocery Company and others against the Galveston, Harrisburg & San Antonio Railway Company and others. Judgment for plaintiff against defendant Galveston Wharf Company was reversed and rendered [13 S.W.(2d) 983], and Galveston, Harrisburg & San Antonio Railway Company and others bring error.

Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiffs in error.

A. H. Culwell, Turney, Burges, Culwell & Pollard, and Fryer & Cunningham, all of El Paso, and Geo. S. Wright and Thompson, Knight, Baker & Harris, all of Dallas, for defendants in error.

RYAN, J.

There is only one question in this case: "In whose possession was the shipment in question at the time of the fire?" and it having been found as a fact, by the trial court and the Court of Civil Appeals, to have been in the wharf company, the Supreme Court is without authority to disturb such finding (Schley v. Blum, 85 Tex. 551, 22 S. W. 667), unless there be no evidence of sufficient probative force to sustain it (Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059), which means that the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Radley v. Knepfly, 104 Tex. 130, 135 S. W. 111; First State Bank v. Jones, 107 Tex. 624, 183 S. W. 874; Bock v. Fellman (Tex. Com. App.) 212 S. W. 635.

If there is conflicting evidence, the finding of the trial court and of the Court of Civil Appeals is final, and however much the Supreme Court might differ with those courts, it must abstain from assuming authority delegated to them by the Constitution and laws of this state. Texas & P. Ry. v. Levine, 87 Tex. 438, 29 S. W. 466.

This brings us to the naked question of whether there is, in the record, any evidence of probative force in support of the finding of fact made by the trial court and Court of Civil Appeals, that the shipment in question was in possession of the wharf company at the time of the fire, and in considering this question we must disregard all contradictory evidence and consider, by itself alone, the testimony tending to sustain such finding. Wininger v. Ry. Co., 105 Tex. 56, 143 S. W. 1150; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696.

The Court of Civil Appeals made a full statement of the case , and quoted some of the oral testimony tending to sustain their finding of fact.

In view of the wharf company's contention here that there was no evidence on the subject, we think it proper to supplement the statement of the Court of Civil Appeals.

Mr. Gossreau, general manager of the wharf company, in speaking of his company's methods of handling the steamship's cargoes, testified, that as soon as there is a sufficient lot of goods deposited on the wharf, the labor forces of the wharf company are put to work, under supervision of the check clerks, to load such goods into cars.

"So far as the handling of the cargo is concerned, the first thing the Galveston Wharf Company does is to pick it up and load it in the cars. The Galveston Wharf Company picks up this cargo at Pier No. 24 and takes it to the cars for the account of the so-called Galveston Bay Lines, consisting of the I. & G. N., the M. K. & T., the G. C. & S. F. and the G. H. & S. A. Railways. If it is going over the G. H. & S. A., we pick it up and put it on the cars for the account of the G. H. & S. A. The G. H. & S. A. pays us for this in accordance with the loading charges under our Tariff No. 18.

"When this cargo was unloaded that day, our records show that during the day the Galveston Wharf Company loaded into cars 45 cars of checked freight and 16 straight car-loads from the `Concho.' The Galveston Wharf Company, between 8:30 and closing time that day had loaded from Pier No. 24 out of the cargo of the `Concho' this many cars. The Galveston Wharf Company did not begin as soon as the boat began. * * * We receive compensation for one service from the Bay Lines, and we receive compensation for another service from the Mallory. When the boat comes in, the Mallory, in addition to the rental, in accordance with Local Tariff No. 18, under Section 3, would be assessed as follows: `Rates and rules governing the handling of traffic over the wharves and piers of the Galveston Wharf Company,' wharfage rates in cents per hundred pounds, except as otherwise provided, applying on import and coast-wise traffic inward. * * * We, of course, perform the additional service of switching the cars. After loading the cargo we switch the cars from the track of the Galveston Wharf Company to the line of the G. H. & S. A., and they pay for that service. * * * There is no receipt given for any freight handled for the Mallory Line until such a service has been actually performed. We don't give a receipt until we pick the cargo off their leased pier and load it on the cars. In the course of dealing there with the Mallory Line and the G. H. & S. A., we did not at any time render any service other than what I have detailed about picking it up and loading it on the cars on behalf of the G. H. & S. A., and the use of the piers to the Mallory. These are the only two services we render. These are the only two we get any compensation for. * * * The loading by the Wharf Company of the cars from this cargo into the cars of the Bay Line is a good day's work. The ship knocking off at 5:30, it would take our forces a little after that to finish. The record indicated the last labor forces knocked off approximately at seven. * * * It has been the practice for many years that when the `Concho' came in there with this cargo, it is unloaded on the wharf, and we pick it up and put it on the cars. The cargo we did pick up and load into the cars, and the G. H. & S. A. paid us for those cars under the tariff we have just referred to for the loading charge, and so did all other lines for whom service was performed. Now, if the fire had not occurred, and we had picked up this cargo of sardines and placed it in the cars, under the practice and course of dealing the G. H. & S. A. would have paid us for loading charge outlined in the tariff. When we give a receipt to the Mallory Steamship Company after we have checked the cargo and loaded it into the cars, we give it for the account of the interested Galveston Bay Line. Absolutely, we never give a receipt as of date or time prior to our picking up the cargo and loading it into the cars. It is given only on the date the freight actually is picked up and loaded into the cars. * * * At the time this fire occurred in January, 1926, where a steamer of the Mallory Line docked and unloaded its cargo on Pier No. 24, after that cargo was unloaded on Pier No. 24, the first thing the Galveston Wharf Company did in reference to said cargo would be to pick up the cargo and place it in the cars for the account of the Galveston Bay Line concerned. That was the only thing the Galveston Wharf Company did with reference to the cargo after it was put on Pier No. 24, except that after loading was accomplished, the cars would be switched to the respective rail line, and for this switching another charge was made, a switching charge. * * * Before the steamer arrived, the billing was furnished, according to the testimony of the Mallory line, to the Galveston Wharf Company, and that is correct. When the billing was furnished our clerks made entries from billing into the check record book. This book was for the purpose of checking the freight as it was loaded. After we did that, we would send the billing to the interested rail line. * * * As to when the billing would be given in reference to the arrival of the ship, it would depend, usually it gets in a couple of days ahead of the arrival of the steamer. Sometimes it misses entirely, but that is unusual. As a rule it would be delivered to the railroad before the steamer arrived.

"At the time this fire occurred, the Mallory Steamship Company did not have any depot or other place for the reception of freight, or unloading of freight, or for receiving of out-bound freight, other than those piers there at Galveston. * * * That is the only place where they transact their business of receiving freight and discharging freight, on these piers that they rent from us. * * * Of course, if we had anticipated that there would be a fire that night, I might have gotten extra employees and loaded those cars.

"The Galveston Wharf Company did not receive any compensation for rendering any service either to the steamship lines or rail lines or anyone else, except for picking up the cargo from Pier No. 24 and taking it to the cars, and then switching the cars, and the wharfage charge to the steamer. * * * I think the Galveston Wharf Company is recognized as a common carrier. I believe it has been declared so by the Interstate Commerce Commission. We make the same reports to the Interstate Commerce Commission that other common carriers make. We have approximately fifty miles of trackage and operate some eight or ten engines. We own eight. We have our own crews, our own yard forces. We operate our own yards and anything that comes into the Galveston Wharf that is bound inland is handled by the Wharf Company to the junction of the connecting line. * * * I am sure it is the practice that at about the time of the departure of the `Concho' on the present voyage 112, the bills of lading covering the shipments that are in that boat are forwarded immediately by United States mail to the Mallory Line at Galveston. The Mallory forces and our check clerk forces had connecting offices on Pier No. 25. These bills go down to the Mallory Line clerk, and he...