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

• Decision Date: 18 March 1931
• Docket Number: No. 5423.,5423.
• Citation: 36 S.W.2d 985
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. AMERICAN GROCERY CO. et al.
• Court: Texas Supreme Court

36 S.W.2d 985

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

No. 5423.

Supreme Court of Texas.

March 18, 1931.

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

On rehearing.

Former opinion affirmed.

For previous opinion see 25 S.W.(2d) 588, which reversed judgment of Court of Civil Appeals in 13 S.W.(2d) 983, and affirmed judgment of trial court.

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 George S. Wright and Thompson, Knight, Baker & Harris, all of Dallas, for defendants in error.

SHARP, C.

This is a suit by the American Grocery Company and others against the Mallory Steamship Company, Galveston, Harrisburg & San Antonio Railway Company, and the Galveston Wharf Company, for the value of a carload of sardines destroyed by fire while the same was in transit to that company as consignee. The shipment originated in Seaport, Me.; the initial carrier being the Seaport Navigation Company, which issued a through bill of lading, shipper's order, notify American Grocery Company, El Paso, Tex. Under the bill of lading, this merchandise was routed: Seaport Navigation Company, Mallory Steamship, and Galveston, Harrisburg & San Antonio Railway Company—the Galveston Wharf Company not being a party to the bill of lading.

The case was tried before the court without a jury, and the trial court rendered judgment in favor of the American Grocery Company and others against the Galveston Wharf Company for the value of the shipment and in favor of the Galveston, Harrisburg & San Antonio Railway Company and the Mallory Steamship Company. An appeal was made to the Court of Civil Appeals, and the judgment of the trial court was reversed as to the wharf company and judgment rendered in favor of the American Grocery Company against the Galveston, Harrisburg & San Antonio Railway Company, 13 S.W.(2d) 983. Writs of error were granted by the Supreme Court to review the judgment of the Court of Civil Appeals.

The case was referred to Section B of the Commission of Appeals, and the Commission, through Judge Ryan, in its original opinion reversed the opinion of the Court of Civil Appeals and affirmed the judgment of the trial court. 25 S.W.(2d) 588.

Upon motion for rehearing, the Supreme Court withdrew the case from Section B, set aside the judgment rendered therein, and retained same for its decision.

We refer to the opinions of the Court of Civil Appeals and Commission of Appeals for a more detailed statement of the nature of the case.

For convenience, the companies involved will be designated as the steamship company, the railway company, and the wharf company.

At the very threshhold of this case we are met with this question: In whose possession was the shipment of goods at the time of the fire? Let us briefly review the testimony bearing upon this phase of the case. The evidence is undisputed that the shipment arrived at Galveston on the morning of January 13, 1926, in the steamship Concho. At Galveston the steamship company leased from the wharf company certain piers which the steamship company used in its freight business. Pier 24 was used as the pier on which the steamship company unloaded inbound shipments coming to Galveston. Other piers were used by the steamship company for loading outbound shipments.

At the time in question, the railway company, named in the bill of lading as the delivering carrier, had no tracks which connected with the unloading depot of the steamship company at Pier 24. The wharf company had tracks which made connection with the railway line at a point removed from Pier 24. The wharf company filed tariffs with the Interstate Commerce Commission, which fixed a charge for two services to be rendered to the carrier in two respects: (1) The wharf company would check with the clerks of the steamship company and pick up the shipments from Pier 24 destined to inland points in Texas, truck these shipments to the cars adjacent to Pier 24, load the cars; and (2) switch the cars to the respective rail carriers named as delivering carriers in the bill of lading.

During the day of January 13, 1926, the steamship company unloaded a very large number of shipments from the steamship Concho and placed them on Pier 24. Among these was the shipment to the grocery company. During that day the wharf company picked up from Pier 24 sixty-six cars of freight which had been unloaded by the steamship company from the steamship Concho and placed these sixty-six cars of merchandise in cars for various railroads, but at 7 o'clock on the evening of January, 13, 1926, when the wharf company closed its operation for the day, the shipment involved in this suit with other shipments was still on Pier 24, where it had been placed by the steamship company and where it was destroyed by fire on the night of January 13, 1926.

On the day of the 13th this shipment needed recoopering, because of some damaged packages. This recoopering was completed somewhere around 4 o'clock in the afternoon of the 13th day of January, 1926. The unloading began at 8:30 a. m. on said date, and was completed by the Mallory Line at about 5:30 p. m. of the same day.

Some of the witnesses for the steamship company testified, in effect, that, so far as the steamship line was concerned, it had completed the delivery of the shipment. Witnesses for the wharf company testified, in substance, that the steamship company unloaded the shipment on the pier, and it was taken possession of by the wharf company when the shipments were lifted from the floor of the pier and deposited in the cars by the wharf company forces for account of the Galveston Bay Lines; that the local freight is held on the pier and delivery is made to the consignees by the steamship company forces from these piers. That is the only place where it transacts the business of receiving freight and discharging freight on the piers rented from the wharf company.

Mr. Gossreau, general manager of the wharf company, testified: "There is no receipt given for any freight handled for the Mallory Line until such a service has been actually performed."

Again he says: "Our forces are at liberty to begin the loading as soon as the freight is put on the wharf but the practice is to wait until there is a sufficient amount deposited there to keep the labor busy. Otherwise it is not a paying investment. It is our privilege to begin loading as soon as it is put on the wharf, unless a hold order is put on some specific shipment, which happens only occasionally. So that as soon as freights were deposited on the wharf by the forces of the Mallory there was nothing to prevent our forces from immediately picking it up and trucking it to the cars. That was all left to the judgment and discretion of the Galveston Wharf Company Supervisor of forces on the docks. It was not a matter within the control of the Mallory Line."

He further says: "The Mallory Line never has required so far as that boat is concerned for us to give them a receipt for what we picked up before we loaded it."

Again he says: "It gets its receipts the following day or as soon thereafter as possible. In the meantime the freights are absolutely gone so far as the Mallory is concerned and I think they depend upon the well known integrity of the Wharf Company to see that the receipts are forth coming. It is just a matter of confidence but in the meantime the possession of the stuff is away from them and out of them. It has left their possession."

More testimony along this line could be quoted, but we think the above sufficient to illustrate our views.

The trial court in its findings of fact, among other things, found: (1) That the shipment in question was in the exclusive possession of the wharf company; and (2) that it was not in possession of either the railway company or the steamship company.

The wharf company contends that it should be held under the evidence introduced that, as a matter of law, no delivery of the shipment in controversy was made by the steamship company to the wharf company. To this contention we cannot agree. We think the evidence raises a fact issue to be determined, and the trial court found that a delivery had been made by the steamship company to the wharf company.

Under the state of the record, we do not think it can be said, as a matter of law, that there was no evidence of any probative force to sustain the findings of the trial court. It can only become a question of law when the facts and circumstances are such that but one reasonable conclusion can be drawn therefrom. Wininger v. Ry. Co., 105 Tex. 56, 143 S. W. 1150; Radley v. Knepfly, 104 Tex. 130, 135 S. W. 111; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696.

This brings us to the consideration of another question: Was the wharf company a common carrier as defined by law, and liable for the shipment destroyed by fire?

It is the contention of the wharf company that the service performed by it is such that it does not come under the definition of a common carrier, that it was not mentioned in the through bill of lading, and, by reason of the nature of its services and compensation paid therefor, it is merely an agent of the railroad lines.

The trial court found:

"That the Galveston Wharf Company is a chartered transportation Company, owning, in addition to the piers located on the Galveston Bay side of the island, about fifty-one (51) miles of railroad trackage, extending from said piers along and through its yards in Galveston to connections with the lines of railroad operating out of Galveston, including the Galveston, Harrisburg & San Antonio Railway Company. That said Galveston Wharf Company owns and operates eight (8) switch engines, providing therefor the necessary yard and engine forces.

"That it had on file with the Interstate Commerce Commission and with...