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

• Decision Date: 10 February 1926
• Docket Number: (No. 770-4570.)
• Citation: 280 S.W. 540
• Parties: GALVESTON, H. & S. A. RY. CO. v. LICATA.
• Court: Texas Supreme Court

280 S.W. 540

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

(No. 770-4570.)

Commission of Appeals of Texas, Section A.

February 10, 1926.

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

Suit by A. T. Licata against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (269 S. W. 821), and defendant brings error. Reversed and remanded.

Kemp & Nagle and H. Potash, all of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error.

Nealon & McGill, of El Paso, for defendant in error.

BISHOP, J.

This is a suit filed by A. T. Licata, defendant in error, against the Galveston, Harrisburg & San Antonio Railway Company, plaintiff in error, in the district court of El Paso county, to recover damages on account of its negligence in the shipment of a carload of cantaloupes from El Paso, Tex., to New Orleans, La. The parties will be designated as in the trial court.

The car of cantaloupes involved in this suit was shipped from Morada, state of Nayarit, Mexico, on April 21, 1922, to El Paso, Tex., where it arrived April 29, 1922. Plaintiff in his petition alleged that, on arrival of the car at El Paso, he purchased the cantaloupes and on that date directed defendant to ship said carload of cantaloupes with standard refrigeration to Fort Worth, Tex.; that it accepted said shipment and proceeded to transport said car over its railroad to Fort Worth; that thereafter, on the 1st day of May, 1922, before the car reached Fort Worth, he delivered a written order to the agent of defendant at El Paso, Tex., directing him to divert the car with standard refrigeration to New Orleans, La.; that though said agent accepted the order of diversion, defendant negligently failed to make such diversion and negligently transported the carload of cantaloupes to Fort Worth, Tex.; that it also negligently failed to notify him that the car had not been diverted, and that by reason of such negligence the car of cantaloupes was delayed, and did not arrive in New Orleans, La., until two days later than it should have reached there, which caused the cantaloupes to arrive "in New Orleans in very bad condition, being cooked, overripe, soft, and badly decayed, practically all of said cantaloupes showing mold at the stem." He also alleged that defendant failed to properly ice the car at re-icing stations en route as required for standard refrigeration as prescribed by the perishable products tariff.

Defendant answered by general denial, and also alleged that if the cantaloupes "arrived in New Orleans in unmerchantable condition that the same was due to natural deterioration as a result of the time during which the said cantaloupes had been off the vine, and also due to the condition of the said cantaloupes at the time they were picked and crated." The case was tried before a jury, resulting in a verdict and judgment for plaintiff, which was by the Court of Civil Appeals affirmed. 269 S. W. 821.

Defendant introduced testimony to the effect that these cantaloupes were grown in Punta de Agua, some 40 miles from Morada, the original point of shipment; that they were picked from the vines three or four days before they were loaded, and were hauled to Morada in...