Gulf, C. & S. F. Ry. Co. v. Everett & Long

• Decision Date: 16 November 1904
• Citation: 83 S.W. 257
• Parties: GULF, C. & S. F. RY. CO. et al. v. EVERETT & LONG.
• Court: Texas Court of Appeals

83 S.W. 257

GULF, C. & S. F. RY. CO. et al. v. EVERETT & LONG.

Court of Civil Appeals of Texas.

November 16, 1904.

Appeal from Bell County Court; G. M. Felts, Judge.

Action by Everett & Long against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiffs, defendants appeal. Reversed.

J. W. Terry and A. H. Culwell, for appellants. A. M. Monteith, for appellees.

KEY, J.

Appellees instituted this suit against the Gulf, Colorado & Santa Fé Railway Company, the Missouri Pacific Railway Company, and the Texas & Pacific Railway Company to recover the market value of a car load of corn shipped by appellees from Foster, Mo., to Belton, Tex., over the lines of railway operated by the defendants. At the trial the court instructed a verdict in favor of the Missouri Pacific Railway Company, and submitted the case to the jury as against the other two companies. Verdict and judgment were rendered against each company for $144.77½, and each company has prosecuted an appeal.

The trial court gave the following instruction to the jury: "You are charged that in case of a shipment of personal property, which at time of shipment was in good condition and order, and at time of arrival at point of destination was in bad condition or order, so as to materially affect its usefulness or value to the consignee or the party to whom the shipment was made, and said deterioration of value or use resulted from the carelessness or negligence of the railroad or railroads carrying the same, then in such case the consignee or owner of said property so shipped may refuse to receive said property in such injured condition, and may sue the railroad or railroads causing such injury or damage for the value of said property." This charge is assigned as error, and we sustain the assignment. "As a general rule, the fact that the goods are injured upon the journey through causes for which the carrier is responsible does not of itself justify the consignee in refusing to receive them, but he must accept them, and hold the carrier responsible for the injury. * * * Delay on the part of the carrier does not constitute a conversion of the goods, no matter how long continued, so as to make him liable for their value; and, so long as the goods remain in specie, however much they may be depreciated in value, the consignee or owner must receive them when tendered, and can recover from the carrier only the damages which he has sustained by the delay." Hutch. on Car....