Herrin Transp. Co. v. Sheldon

• Decision Date: 15 March 1948
• Docket Number: No. 5846.,5846.
• Citation: 209 S.W.2d 943
• Parties: HERRIN TRANSP. CO. v. SHELDON.
• Court: Texas Court of Appeals

209 S.W.2d 943

HERRIN TRANSP. CO. v. SHELDON.

No. 5846.

Court of Civil Appeals of Texas. Amarillo.

March 15, 1948.

Appeal from District Court, Grayson County; R. C. Slagle, Jr., Judge.

Suit by Ben. M. McKinney against V. J. Sheldon to rescind a contract for the sale of a sloop and recovery of earnest money, wherein the defendant impleaded the Herrin Transportation Company and the North East Texas Motor Lines, Inc., as third-party defendants. From a judgment rescinding the contract and awarding the defendant damages against the Herrin Transportation Company, the Herrin Transportation Company appeals.

Judgment affirmed.

Phinney, Romick & Hallman, of Dallas, for appellant.

Freeman, Wolfe, Keith & Milan, David H. Brown, Murry H. Nance, Jr., and J. S. Freels, all of Sherman, for appellee.

LUMPKIN, Justice.

This appeal is from a $1,500 judgment against the appellant, Herrin Transportation Company. The appellee is V. J. Sheldon, a resident of New Orleans, Louisiana. The suit grew out of a contract between Ben M. McKinney of Sherman, Texas, and the appellee. According to the terms of the contract the appellee agreed for a consideration of $2,200 to sell to McKinney and to deliver to Denison, Grayson County, Texas, a sixteen-foot sloop known as the Sorceress II. As earnest money Mr. McKinney deposited with appellee the sum of $550. The contract, dated January 12, 1946, provided that in the event the boat was not in good condition upon arrival at its destination, McKinney could refuse to accept delivery. The record reveals that the appellee, Sheldon, contracted with the appellant, Herrin Transportation Company, to deliver the Sorceress II to Denison, and on January 28, 1946, the boat completely outfitted with its mast, gear, and tackle was turned over to the appellant at the Higgins Yards, New Orleans. On January 31, 1946, the boat arrived in Grayson County where McKinney, exercising his right under the contract, refused to accept delivery on the grounds that the mast had been damaged. McKinney instituted this suit against the appellee in the District Court of Grayson County, for a rescission of the contract and a recovery of the $550 earnest money. A writ of attachment was issued and the boat was seized by the sheriff of Grayson County and remained in his custody until the date of the trial. In response to McKinney's allegations, the appellee impleaded the appellant as a third party defendant along with North East Texas Motor Lines, Incorporated, a connecting carrier between Dallas, a terminus of the Herrin Transportation Company, and Denison.

Trial was before the court without a jury and resulted in the court finding that at the time the Sorceress II was turned over to the appellant, it was in a seaworthy condition as to its mast, gear, tackle, and hull; that the boat was transported from New Orleans to Dallas by the appellant, Herrin Transportation Company, where it was delivered to the North East Texas Motor Lines, Incorporated, and carried to Denison; that at the time the boat arrived at Denison it had been damaged during the transportation; that the damage was to the boat's mast and was of such a nature as to constitute essential and material damage to the boat; and that the damage was of such an extent as to warrant a rescission of the contract. The court further found that the appellant is a common motor freight carrier for hire within the State of Texas; that the loss and damage to the boat occurred while it was in the custody and control of the appellant; that the damage was due to the negligent handling of the boat by the appellant; and that the negligent handling of the boat was the proximate cause of the loss and damage. The trial court then found the appellee had been damaged in the amount of $1,500 and rendered judgment accordingly. The appellant gave notice and perfected its appeal to the Court of Civil Appeals at Dallas, whence it was transferred to this court by the Supreme Court of Texas.

The appellant attacks the trial court's judgment in eleven points of error, first contending that the court erred in indulging a presumption of negligence against the carrier. A review of the record reveals that the only injury to the Sorceress II complained of was damage to the mast. The evidence establishes that the mast was in a good condition when turned over to the carrier at the Higgins Yards at New Orleans. Upon arrival at Denison it was found that the mast had been splintered, had several new cross-grain cracks, and a diagonal crack. In addition there was an abrasion on the left side next to the top of the mast — an abrasion which was not there when the boat was turned over to the carrier. The evidence amply supports the court's finding that the Sorceress II was turned over to the appellant in a seaworthy condition but arrived at its destination with a damaged mast. In cases of this nature in order to recover the proof must raise the presumption that the damage complained of occurred as a result of the carrier's negligence. As applied to interstate shipments of freight over the lines of two or more connecting carriers, upon a through bill of lading issued by the initial carrier, the proof of delivering the freight in good condition to the first carrier and the delivery to the destination in a damaged condition, raises a presumption of negligence upon the part...