Gulf, C. & S. F. Ry. Co. v. Buckholts State Bank

• Decision Date: 12 December 1923
• Docket Number: (No. 6700.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 258 S.W. 491
• Parties: GULF, C. & S. F. RY. CO. v. BUCKHOLTS STATE BANK.
• Court: Texas Court of Appeals

258 S.W. 491

GULF, C. & S. F. RY. CO. v. BUCKHOLTS STATE BANK.

(No. 6700.)^*

Court of Civil Appeals of Texas. Austin.

December 12, 1923.

Rehearing Denied January 16, 1924.

Appeal from District Court, Milam County; Prentice Oltorf, Judge.

Action by the Buckholts State Bank against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, Chambers, Wallace & Gillis, of Cameron, and F. J. & C. T. Duff, of Beaumont, for appellant.

W. A. Morrison and Roy Baskin, both of Cameron, for appellees Buckholts State Bank and C. A. Pitts & Co.

BLAIR, J.

Appellee, Buckholts State Bank, as purchaser of an order bill of lading evidencing a shipment of 42 bales of cotton, sued appellant railway company for its value, alleging a misdelivery or conversion. The alleged conversion was based upon two grounds: First, that appellant railway company converted the cotton by delivering it to the Cameron Compress Company, upon its arrival at Cameron, Tex., without having first notified C. A. Pitts, at Cameron, Tex., the party named in the bill of lading to be notified in violation of its contract to do so, and in violation of its contract to deliver the cotton only upon the presentation and surrender of the order bill of lading under which the cotton was transported; and, second, that appellant converted the cotton by instructing the Cameron Compress Company to deliver its receipts for 37 bales of cotton to C. A. Pitts, of Cameron, Tex., without first notifying Pitts of the arrival of the cotton, and without requiring the said Pitts to present the order bill of lading under which the cotton was transported, in violation of appellant's contract to do so; and also converted the five remaining bales of cotton by directing the compress company to make tickets to W. E. Coley, the shipper, and to deliver the tickets so issued in the name of Coley to appellant. The value of the cotton was alleged to be 30 cents per pound at Buckholts and Cameron, Tex., on September 10th, the date of the shipment, which amount appellee alleged it was entitled to receive under the bill of lading, which provided that for any loss or damages to the cotton its value at the date and place of shipment would be paid. Appellee also alleged a refusal of appellant to deliver it the receipts which it obtained for the cotton.

The defendant in answer to the specific allegations of conversion, alleged that W. E. Coley, the owner and shipper, delivered it 42 bales of cotton at Buckholts, Tex., at the time alleged, with instructions to transport and deliver the same to the compress at Cameron, Tex., notify C. A. Pitts of its arrival at destination; and that in accordance with such instructions it placed the cotton on the platform of the Cameron Compress Company, as the agent of the shipper and every other holder of the order bill of lading, and notified C. A. Pitts of its arrival at Cameron, Tex.; that C. A. Pitts disclaimed any knowledge of the cotton and refused to receive the same; that neither the shipper nor any one holding under him ever demanded a delivery of the cotton nor ever presented the bill of lading therefor; that the cotton remained from the dates of delivery by appellant to Cameron Compress Company, in the possession of said Cameron Compress Company, until the 10th day of October, 1920, when a fire which destroyed the compress also destroyed the cotton in question; that having stored the cotton with a reliable concern, appellant's liability and relationship to said cotton had ceased as a common carrier, and that it was liable therefor only as a warehouseman at the time it was destroyed by fire; that if the delivery of the compress company's tickets to Pitts was conversion, appellant relieved itself from liability therefor by obtaining a return of the tickets from Pitts before the fire destroyed the cotton, and was ready, able, and willing to deliver the same to the shipper or any holder of the bill of lading demanding the same and surrendering bill.

Upon the uncontroverted facts and the special matters of fact found by the jury in answer to special issues, the court rendered judgment for appellee against appellant railway company for the value of the cotton at the time and place of its conversion. Appellee excepted to that portion of the trial court's judgment which held its measure of damages to be the value of the cotton at the time and place of the conversion; and by cross-assignments of error contends that its measure of damages was fixed by a provision in the bill of lading to be the value of the cotton at the time and place of shipment.

Appellant filed a motion for a new trial, which was overruled by the court, and to which ruling an exception was taken, notice of appeal given, and the appeal duly perfected.

Findings of Fact.

The undisputed facts show that on the 10th day of September, 1920, W. E. Coley, as owner of 42 bales of cotton, delivered them to appellant railway company, at Buckholts, Tex., for transportation to Cameron, Tex., a distance of about 10 miles. Appellant accepted the cotton and issued its order bill of lading which contained the following provision as to notice of arrival at destination: "Consigned to shipper's order notify Cameron, Texas. Notify C. A. Pitts, Cameron, Texas." This order bill of lading was indorsed in blank by Coley to appellee, on the day following its issuance, for a valuable consideration, and it remained in appellee's possession from that time until the trial, when it was introduced in evidence. Appellant transported the cotton to Cameron, Tex., and without notifying C. A. Pitts or W. E. Coley, the shipper, of its arrival, and without the authority or consent of Pitts or W. E. Coley, and without requiring the production and surrender of the bill of lading, delivered it in three separate lots on September 13, 14, and 16, 1920, to the Cameron Compress Company, at Cameron, Tex. Appellant's agents thereafter instructed the compress company to issue its separate ticket or receipt for each bale of cotton, and to deliver C. A. Pitts the tickets representing 37 bales of cotton, and to issue tickets for the 5 remaining bales to W. E. Coley, and deliver those issued to Coley to appellant. C. A. Pitts knew nothing of the shipment, or of the instructions given the compress company by appellant concerning the 37 tickets, and became aware of it the first time at a later date, when he found the tickets mixed with others furnished him, which represented cotton that he had stored at the compress. Pitts never claimed the cotton, nor ever had in his possession the bill of lading under which it was shipped. Upon request, Pitts turned over to appellant the tickets for the 37 bales of cotton either a few days before or a few days after the cotton was destroyed by fire. Appellant was informed by C. A. Pitts at the time it regained possession of the compress tickets that the Buckholts Bank held the bill of lading. Appellant, after regaining the possession of all of the compress tickets, which represented constructive or symbolic title and right of possession to the 42 bales of cotton, did not notify appellee or Coley, the shipper, that it had them and was ready to deliver them upon a surrender of the bill of lading. Appellant did not notify appellee or Coley, the shipper, that it had placed the cotton with the Cameron Compress Company for storage at any time. Appellant did not notify Coley, the shipper, of the arrival of the 42 bales of cotton at destination, and that it held it subject to its order, after C. A. Pitts disclaimed any interest in it and refused to accept it. On the 10th of October, 1920, the Cameron Compress Company was destroyed by fire, and the 42 bales of cotton covered by this shipment were totally destroyed by said fire. It was agreed by the parties that on the 10th day of September, 1920, the cotton was of the value of 30 cents per pound at Buckholts and Cameron, Tex.; that on September 13th, 14th, and 16th, respectively, it was worth 28, 27¾, and 28 cents per pound at Buckholts and Cameron, Tex.; and that the aggregate weight of the 42 bales of cotton was 23,073 pounds.

The jury found that Coley knew before the fire that the cotton had been delivered to the compress and the receipts to Pitts, but that Coley did not agree that Pitts should hold the compress receipts, and that Coley had no authority to act as agent of the appellee bank after the delivery of the bill of lading to appellee.

Opinion.

We are of the opinion that the judgment of the trial court under the undisputed facts and the findings of fact by the jury is correct. Appellant, under the facts as proved, was liable for a misdelivery or conversion of the cotton. On the question of a misdelivery or conversion, the evidence discloses that appellant delivered the cotton in question to the Cameron Compress Company, without notifying either the shipper or C. A. Pitts of its arrival at destination, in violation of its...