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

• Decision Date: 04 November 1911
• Citation: 141 S.W. 1020
• Parties: GULF, C. & S. F. RY. CO. v. STEWART et al.
• Court: Texas Court of Appeals

141 S.W. 1020

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

Court of Civil Appeals of Texas. Dallas.

November 4, 1911.

Rehearing Denied December 16, 1911.

Appeal from Johnson County Court; J. B. Haynes, Judge.

Action by G. E. Stewart and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed in part, and reversed and remanded in part.

Terry, Cavin & Mills, A. H. Culwell, and Rodman S. Cosby, for appellant. Walker & Baker and Flippin, McCormick, Gresham & Freeman, for appellees.

TALBOT, J.

This suit was instituted by the appellee G. E. Stewart against the appellant, Gulf, Colorado & Santa Fé Railway Company. The material allegations of the plaintiffs' petition are that plaintiff was the owner of a certain car load of apples which had been on the 14th day of February, 1910, delivered to the defendant at Ft. Worth, Tex., for transportation to Temple, Tex.; that said car of apples had originally been shipped from Fruita, Colo., to Kansas City, Mo., where same had been put in cold storage, and thence shipped to Ft. Worth, Tex.; that the freight on said car had been prepaid to destination, and that the contents of the car, to wit, 540 boxes of apples, were in first-class condition when delivered to the defendant at Ft. Worth, Tex.; that the said car reached Temple, Tex., on the 17th day of February, 1910, and was not delivered to the plaintiff until February 24, 1910, although plaintiff made repeated demands upon defendant for delivery; that during the time said apples were being held by the defendant at Temple the weather was hot; that plaintiff notified the defendant, Gulf, Colorado & Santa Fé Railway Company, that the ventilators of the car were closed; and that, unless the same were opened and the car ventilated, the apples would rot, but that the said defendant negligently failed to open the ventilators in said car or otherwise ventilate the same, and refused to allow plaintiff access to the car; that finally, on February, 24, 1910, late in the afternoon, said defendant placed the car of apples for unloading, and gave plaintiff permission to enter same; that upon entering the car on that date plaintiff found the apples badly damaged; that they had become too hot, had sweated, soured and rotted to such an extent that they were practically worthless, to plaintiff's damage $850; that this condition of the apples was the direct result of the wrongful and negligent conduct of the defendant, Gulf, Colorado & Santa Fé Railway Company, in refusing to deliver the same to plaintiff, and in refusing to open the ventilators in the car or to otherwise ventilate said car. The defendant, Gulf, Colorado & Santa Fé Railway Company, answered, and alleged, in substance, that the shipment in question originated November 4, 1909, at Fruita, Colo., from which place they were transported to Kansas City, Mo., and there put in cold storage from November 8, 1909, to February 5, 1910; that said shipment was then transported over various lines of railroads to Ft. Worth, Tex., where on the 14th day of February, 1910, it was delivered to the defendant, Gulf, Colorado & Santa Fé Railway Company, to be thence transported to Cleburne, Tex., from which place it was diverted, upon the order of the shipper, to Temple, Tex., arriving at said place about 6:50 p. m. February 18, 1910; that said shipment from Fruita, Colo., to Temple, Tex., was a through shipment, and moved on one bill of lading from point of origin to destination; that said shipment, while in the custody of the defendant, was handled with all due and reasonable dispatch, was properly ventilated, and that the said defendant was not in any manner negligent in regard thereto. Said defendant pleaded that the injury to the apples was caused by the natural result of the length of time necessarily consumed in the shipment of the said car of apples from Fruita, Colo., to Kansas City, Mo., the retention of same at Kansas City in cold storage, and the reconsignment of same to Temple, Tex.; and by way of cross-action pleaded that, if any unreasonable delay occurred at Temple, said unreasonable delay was proximately caused by the negligence of the Missouri Pacific Railway Company, the initial carrier, in failing to show on the waybill issued by it that the freight charges on said shipment had in fact been prepaid, and prayed that the Missouri Pacific Railway Company be made a party to the suit, and that it have judgment over against the Missouri Pacific Railway Company for any amount adjudged against it.

The appellee Missouri Pacific Railway Company answered the cross-bill of the defendant, Gulf, Colorado & Santa Fé Railway Company, and pleaded among other things not necessary to state, as special grounds of exception to said bill, that "it had been improperly joined a party to this suit by the Gulf, Colorado & Sante Fé Railway Company, for that the plaintiff herein does not seek a recovery against the said Gulf, Colorado & Santa Fé Railway Company for any fault, negligence, or wrong committed by the Missouri Pacific Railway Company, and there are no pleadings filed herein whereby recovery is sought or would be authorized by plaintiff against the Gulf, Colorado & Santa Fé Railway Company for any failure, default, or negligence attributable to the Missouri Pacific Railway Company." A jury trial resulted in a verdict in favor of the plaintiff against the defendant, Gulf, Colorado & Santa Fé Railway Company, for $407.50, and in obedience to a peremptory instruction given by the court in favor of the Missouri Pacific Railway Company. Judgment was entered in accordance with the verdict, and the Gulf, Colorado & Santa Fé Railway Company appealed.

In the seventh...