Gulf, C. & S. F. R. Co. v. Edloff

• Court: Texas Supreme Court
• Writing for the Court: Denman
• Citation: Gulf, C. & S. F. R. Co. v. Edloff, 34 S.W. 414 (Tex. 1896)
• Decision Date: 17 February 1896
• Parties: GULF, C. & S. F. R. CO. et al. v. EDLOFF.

34 S.W. 414

GULF, C. & S. F. R. CO. et al. v. EDLOFF.

Supreme Court of Texas.

February 17, 1896.

Error to court of civil appeals of Fifth supreme judicial district.

Action by George G. Edloff against the Gulf, Colorado & Santa Fé Railroad Company and the Atchison, Topeka & Santa Fé Railroad Company, in the district court of Dallas county. Judgment for plaintiff, which, on appeal to the court of civil appeals (34 S. W. 410), was affirmed. Defendants bring error. Affirmed.

Alexander, Clark & Hall and J. W. Terry, for plaintiffs in error. Watts, Aldredge & Eckford, for defendant in error.

DENMAN, J.

Edloff sued defendants, Atchison, Topeka & Santa Fé Railroad Company and Gulf, Colorado & Santa Fé Railroad Company, in the district court of Dallas county, Tex., for damages alleged to have been done to a car load of furniture shipped from Chicago, Ill., to Dallas, Tex. The petition alleged: (1) That defendant companies were, at the time of the shipment, partners in the transportation of goods, wares, and merchandise and other personal property, as common carriers, and constituted, with other lines owned by the company first mentioned, what was known as the "Santa Fé Route"; that, if they were not partners, then the first company was at said date, and is now, the owner of all the capital stock of the latter, and the practical owner and controller of same, and they were and are practically one line; that said Santa Fé route—that is, the said Atchison, Topeka & Santa Fé Railroad Company—received said furniture at Chicago in good order and condition to be transported to Dallas, Tex., and there delivered to plaintiff, for valuable consideration, according to the terms of the bill of lading attached to the petition, and that, in receiving the same, said company acted both for itself and the Gulf, Colorado & Santa Fé Railroad Company, whereby both companies, as common carriers, were obligated and bound to transport the furniture to Dallas, and deliver the same to plaintiff in like good order and condition as when received; that said goods, when they arrived at Dallas and were delivered to plaintiff, were in a badly damaged condition (setting out specifically the nature of the damage). (2) That if plaintiff is mistaken in the foregoing allegations of partnership, etc., then the petition declares that at said time said companies were common carriers of freight, operating and owning connecting lines of railway from Chicago, Ill., to Dallas, Tex.; that said Atchison, Topeka & Santa Fé Railroad Company received the furniture in good order and condition at Chicago, to be transported and delivered to plaintiffs at Dallas in like order, and that the Gulf, Colorado & Santa Fé Railroad Company received same from its codefendant at Purcell, Ind. T., the point of connection of their lines, and was bound and agreed to transport same over its line, and deliver same in like good order to plaintiff at Dallas; that both of said lines failed to transport same with diligence and care, but that said furniture was damaged, injured, and lost while upon both of said lines of railway. In addition to the above counts or subdivisions of the petition, the amount of plaintiff's damage was alleged, that he is unable to state how much damage accrued on each line, and that, although he has demanded settlement of each company, both have refused to pay any part of said damage, and he prayed for judgment against both defendants and for general relief.

The Atchison, Topeka & Santa Fé Railroad filed its sworn plea of privilege, claiming the right to be sued in El Paso county, setting up various facts; but said plea did not contain a denial of the existence of the partnership alleged in the petition. The trial court, after hearing the evidence, overruled said plea, and its action thereon, having been affirmed by the court of civil appeals, is assigned as error here. We are of opinion that no other judgment could have been rendered under the pleadings, for the fact of partnership, being alleged in the petition, and not denied in the answer, must have been assumed by the trial court to be true, and therefore the Atchison, Topeka & Santa Fé would be liable as partner for whatever damage may have been properly adjudged against the Gulf, Colorado & Santa Fé. Rev. St. art. 1263; Railway Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900. For this reason we do not deem it necessary to discuss the question as to the sufficiency of evidence introduced on this plea to establish the fact of partnership.

The answer of the Atchison, Topeka & Santa Fé Railroad Company consisted of (1) a general denial; (2) that the goods were shipped under the contract contained in the bill of lading, which stipulated that the liability of defendant should be limited to its own line, and that for all damage to the goods in transit the remedy should be solely against the carrier in whose custody the goods might be at the time of the injury, and that it delivered the goods in good condition to the Gulf, Colorado & Santa Fé Railroad Company at Purcell, the terminal point of its line. The answer contained no specific denial of the...