Houston & T. C. R. Co. v. Reichardt & Schulte Co.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Houston & T. C. R. Co. v. Reichardt & Schulte Co., 212 S.W. 208 (Tex. App. 1919)
• Decision Date: 07 March 1919
• Docket Number: (No. 7625.)
• Parties: HOUSTON & T. C. R. CO. v. REICHARDT & SCHULTE CO.

Page 208

212 S.W. 208

HOUSTON & T. C. R. CO. v. REICHARDT & SCHULTE CO.

(No. 7625.)

Court of Civil Appeals of Texas. Galveston.

March 7, 1919.

On Motion for Rehearing, May 1, 1919.

Appeal from District Court, Harris County; Charles E. Ashe, Judge.

Suit by the Reichardt & Schulte Company against the Houston & Texas Central Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, for appellant.

Guy Graham and Atkinson & Atkinson, all of Houston, for appellee.

GRAVES, J.

This cause involves the shipment of a car of onion sets by J. M. Ricker from Oswego, Kan., to Reichardt & Schulte Company at Houston, Tex., over two railroads, the St. Louis & San Francisco from Oswego to Sherman, Tex., and the Houston & Texas Central from Sherman to Houston. The contract of shipment was evidenced by the standard form bill of lading approved by the Interstate Commerce Commission on June 27, 1908, by its order No. 787, and contained these two clauses:

"Sec. 2. In issuing this bill of lading, this company agrees to transport only over its own line, and except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.

"Sec. 3. The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under the bill of lading, unless a lower value has been represented in writing by the shipper, or has been agreed upon or is determined by the classification or tariffs upon which the rate is based."

When the car was delivered to and opened by Reichardt & Schulte Company in Houston on the morning after its arrival there the night before, the greater portion of the onion sets were found to be in a badly damaged condition, due to having become thoroughly soaked with water after being placed in the car. Having first salvaged all they could, the consignee then sued both the above-named railway carriers to recover damages for the loss upon the rest of the shipment. Holding the service upon the initial carrier, the St. Louis & San Francisco Railroad Company, to be insufficient, the court dismissed it from the suit, and trial proceeded against the terminal carrier, the Houston & Texas Central Railroad Company, alone.

The case was tried before a jury upon the theory that the amount by which the market value of the goods at Houston had been diminished constituted the measure of damages, and special issues were submitted directing the jury to find what, if any, loss upon that basis the Reichardt & Schulte Company had sustained. Upon the return of a verdict finding such a loss to have been sustained and fixing an amount, judgment was accordingly rendered against the railroad company therefor, from which it prosecutes this appeal.

After careful consideration of all questions presented here, the conclusion is reached that only one material error was committed below, and that was in the measure of damages applied.

This was indisputably an interstate shipment, moving under the terms and provisions of a bill of lading prescribed and controlled by the Interstate Commerce Commission, thereby making the shipment a transaction in furtherance of interstate commerce and bringing it under the operation of the act of Congress known as the Carmack Amendment (Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. §§ 8604a, 8604aa]). St. Louis Southwestern R. Co. of Texas v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 80.

Without quoting the amendment here, it is sufficient to say that it required the initial carrier to issue a receipt or bill of lading in comport with stipulations 2 and 3 in the one here involved, fixing the invoice price of the goods to the consignee as the measure of his damages against the carrier.

While the appellee company did not directly sue on this bill of lading, it did declare against each and both of the carriers named upon a contract for through shipment between them from Oswego, Kan., to Houston, Tex., and, in proof of its case and of the terms of that contract, introduced in evidence the original of the bill of lading from which the quoted sections have been taken as being the one under which the shipment moved. Having thus, both by express contract and through the operation of a federal statute governing all such transactions in interstate commerce as the only proof offered showed this to be, become bound by the rule fixing the invoice price as the measure of its damages, the appellee was not entitled to recover upon a different one; that is, the market value of the goods at Houston. It contends, however: First, that because of the allegation in its petition that the two railway companies were partners—which was not denied under oath—both carriers were rendered liable for the full damage it actually suffered, wholly independent of the Carmack Amendment. Second, that on March 4, 1915 (chapter 176, § 1, 38 Stat. 1196 [U. S. Comp. St. § 8604a]), which was subsequent to the date of the contract herein declared upon but prior to the trial, this amendment was itself so amended as to substitute for the invoice price rule one making the carrier liable "for the full actual loss, damage, or injury to such property," etc. (Ann. Cas. 1915B, 81), and that the state of the law at the time of the trial controlled. Third, that the issue of market value as constituting the measure of damages was submitted to, and evidence substantiating it admitted before, the jury, without objection upon appellant's part, and that it comes too late for complaint to be first made on motion for new trial.

It is not thought any of these answering positions can prevail. Just how the mere filing of an allegation that two connecting carriers extending into and transporting goods in interstate commerce across different states were partners, whether denied under oath or not, could defeat the operation of the then prevailing federal statute applying to all such transactions, does not readily occur. The cause of action declared upon, and in that regard substantiated by uncontroverted proof, constituted the shipment one in interstate commerce and so brought it within the purview of the original Carmack Amendment, which at that time was in force. The rule fixing the invoice price as the measure of appellant's liability having therefore been fixed as a matter of contract — executed and fully carried out in accord with the then existing law—its right to respond to that extent only became vested and could not subsequently be enlarged.

It may be entirely true, as the appellee contends, that the effect of repealing a remedial statute is to as completely obliterate all liability thereunder as if it had never been passed, since it has often been held that no one has a vested interest in a continuance of the mere rules or doctrines, themselves, embodied in such laws. Middleton v Texas P. & L. Co., 108 Tex. 96, 185 S. W. 556, recently...