Gulf, C. & S. F. Ry. Co. v. Lipshitz

• Decision Date: 15 May 1930
• Docket Number: No. 873.,873.
• Citation: 29 S.W.2d 905
• Parties: GULF, C. & S. F. RY. CO. v. LIPSHITZ.
• Court: Texas Court of Appeals

29 S.W.2d 905

GULF, C. & S. F. RY. CO. v. LIPSHITZ.

No. 873.

Court of Civil Appeals of Texas. Waco.

May 15, 1930.

Rehearing Denied July 3, 1930.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by Louis Lipshitz, doing business under the firm name of the Lipshitz Smelting & Refining Company, against the Gulf, Colorado & Santa Fè Railway Company, wherein defendant filed a cross-action. Judgment for plaintiff, and defendant appeals.

Affirmed.

Nat Harris, of Waco, and Terry, Cavin & Mills, of Galveston, for appellant.

James P. Alexander and W. R. Poage, both of Waco, for appellee.

GALLAGHER, C. J.

Appellee, Louis Lipshitz, doing business under the firm name of Lipshitz Smelting & Refining Company, instituted this suit to recover of appellant, Gulf, Colorado & Santa Fé Railway Company, the value of a carload of rags delivered to it by appellee at Waco, Tex., and consigned to Aaron Ferer & Son at St. Louis, Mo. Appellee alleged the issuance and delivery to him by appellant of a bill of lading, by the terms of which appellant agreed to transport and deliver said goods to said consignee at said destination. Appellee further alleged that appellant "has wholly failed to ship said carload of rags and to deliver the same in St. Louis, Missouri, but has converted the same to their own use and benefit and has unlawfully destroyed and disposed of the same." Based on said allegations, appellee prayed for judgment for the value of said carload of rags in the sum of $1,303.47.

Appellant pleaded in answer to appellee's demands that it received said carload of rags for transportation to St. Louis as alleged by appellee, under a bill of lading executed by both parties; that there was in existence at the time a certain tariff schedule which, among other things, prohibited the transportation in interstate commerce of explosives or other dangerous articles; that dangerous articles as defined therein included "rags or cotton waste oily with more than five per cent of vegetable or animal oil"; and that such oily rags and cotton waste were included in said shipment. Appellant further alleged that such oily rags and waste were willfully and wantonly included in said shipment by appellee, with full knowledge that the same were by reason of their oily contents inflammable, combustible, and likely to ignite by spontaneous combustion and set fire to the contents of said car; that appellant fraudulently concealed such condition for the purpose of securing transportation of the contents of said car, contrary to the provisions of law and the rules and regulations of the Interstate Commerce Commission. Appellant further specially pleaded the following provision of said bill of lading: "Every party, whether principal or agent, shipping explosives or dangerous goods, without previous full written disclosure to the carrier of their nature, shall be liable for and indemnify the carrier against all loss or damage caused by such goods, and such goods may be warehoused at owner's risk and expense or destroyed without compensation."

Appellant further alleged in that connection that the rags were not damaged by reason of any negligence on its part, but that the same were set on fire by spontaneous combustion due entirely to the inherent nature and quality of the same arising from their oily condition as aforesaid, and that but for such condition they would not have been destroyed by fire. Appellant further pleaded that, as soon as it was discovered that the contents of said car were on fire, the fire was put out, and that, after appellee had refused to retake and unload said rags, the same were unloaded by it in the open, such action being necessary to prevent all said rags from being destroyed by said fire, that thereafter said rags were again tendered to appellee, and that he refused to accept the same.

Based on the above-quoted stipulation of the bill of lading, appellant sued by cross-action for damages to said car resulting from the fire in the sum of $147.05. Appellant also sued for freight charges in the sum of $67.35 which had accrued by reason of the transportation of a part of said carload of rags from Brownwood to Waco, where the loading was completed and said car sealed and delivered to appellant for transportation to St. Louis.

Appellant at the close of the evidence requested in general terms a peremptory charge in its favor, which was refused. The case was then submitted to a jury on special issues. The issues prepared and submitted by the court, with the answers of the jury thereto where answered, were as follows:

"(1) Did any of the rags loaded by plaintiff in car AT61902 contain more than five per cent vegetable oil? Answer: Yes.

"(2) Were such rags, if any, containing vegetable oil, if any, the proximate cause of the fire? Answer: No.

"(3) Did any of the rags loaded in said car contain oil? Answer: Yes.

"(4) Did the oily rags, if any, constitute dangerous goods? Answer: Yes.

"(5) What was the reasonable market value of the rags in question at Waco, Texas, when delivered to the railroad company? Answer: $941.67.

"(6) Was said car damaged by reason of said fire? Answer: Yes.

"(7) Were the rags containing vegetable oil, if any, the proximate cause of the damage, if any, to said car? Answer: No.

"(8) Were the oily rags, if any, the proximate cause of the damage, if any, to said car? Answer: No.

"(9) What amount of money, if any, did the defendant expend for reasonable and necessary repairs if any, on said car by reason of said fire? Answer: ____.

"(10) What was the reasonable amount of freight charges on said shipment from Brownwood, Texas, to Waco, Texas? Answer: $67.35."

The special issues submitted at the request of appellant and the answers of the jury thereto were as follows:

"(1) Was the damage to the rags involved in this suit, if you find the same were damaged, the direct and proximate result of the inherent nature of the rags? Answer: No.

"(2) Was the damage, if any, to the car AT 61902 the direct and proximate result of the inherent nature of the rags contained therein? Answer: No.

"(3) Was the damage, if any, to car AT 61902 the proximate result of the dangerous goods contained therein? Answer: No."

There was no request by either party for the submission of any other issues. Appellant filed a motion for judgment in its favor on the verdict, which was overruled. The court rendered judgment on the verdict in favor of appellee against appellant for the sum of $874.32, being the value of said carload of rags as found by the jury, less the freight found to be due for transporting said car from Brownwood to Waco, where loading was completed. Appellant filed a motion for a new trial, which was overruled. Certain paragraphs thereof are presented as assignments of error.

Opinion.

Appellant in its first assignment of error complains of the submission of appellee's case to the jury; in its second, third, and fourth of the refusal of the court to give a peremptory charge in its favor; and in its eleventh of the action of the court in entering judgment for appellee upon the verdict. Appellant by various propositions submitted under said assignments assails the action of the court in the matters complained of, on the ground that appellee predicated his right to a recovery upon an alleged conversion of said shipment of rags, and that the testimony introduced wholly failed to show a conversion. Appellant further contends in this connection that the testimony precludes a finding of conversion, in that it shows that the rags were damaged or destroyed by fire. Appellant further contends that said shipment of rags constituted dangerous articles within the rules and regulations of the Interstate Commerce Commission; that the same could not be transported nor warehoused; that it was compelled to unload them in the open; and that it thereafter tendered them to appellee and that he refused to receive the same. Appellee's allegations upon which he relied for recovery herein have been hereinbefore set out in substance. No allegation that said rags were destroyed by fire was included therein. Appellant, however, was not content with a mere denial of any act constituting conversion. It pleaded affirmatively and specifically that the rags contained in said car were, by reason of their condition and inherent qualities, ignited by spontaneous combustion, and not by reason of any negligence on its part, and that said rags were in part at least destroyed by such fire.

It is a well-established rule in this state that, in determining whether a judgment is supported by the pleadings, the court will consider the pleadings of both parties, and that omissions in the pleadings of one party may be supplied by the allegations in the pleadings of the other. Ray v. Barrington (Tex. Civ. App.) 297 S. W. 781, 783, par. 1; Wilson v. Duncan (Tex. Civ. App.) 269 S. W. 239, 241, par. 2, and authorities there cited; Morrison v. Cloud (Tex. Civ. App.) 13 S. W (2d) 735, 737, par. 3. That said carload of rags was received by appellant from appellee to be transported to and delivered at St. Louis was alleged in substance by both parties, was supported by the testimony introduced, and in no way contradicted. That said shipment was not so transported nor delivered, but was in fact damaged or destroyed by fire while still in appellant's yards at Waco, was alleged by appellant, and was also supported by the testimony and not controverted. The case was submitted to the jury on the issue of whether the fire which damaged or destroyed said shipment of rags resulted from spontaneous combustion caused by the condition and inherent quality of said rags. Appellant's objections to the issues submitted were in the main based on its contention that appellee "had wholly failed to make out a case," without specifying in what particulars the testimony was insufficient to justify a recovery. No other issues were requested. Our courts have...