Houston & T. C. R. Co. v. Buchanan

• Decision Date: 01 February 1905
• Citation: 84 S.W. 1073
• Parties: HOUSTON & T. C. R. CO. et al. v. BUCHANAN.
• Court: Texas Court of Appeals

84 S.W. 1073

HOUSTON & T. C. R. CO. et al. v. BUCHANAN.

Court of Civil Appeals of Texas.

February 1, 1905.

Appeal from District Court, Llano County; Clarence Martin, Judge.

Action by S. H. Buchanan against the Houston & Texas Central Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

S. R. Fisher, J. H. Tallichet, and Baker, Botts, Parker & Garwood, for appellants. McLean & Spears, for appellee.

FISHER, C. J.

This is a suit by Buchanan against the Houston & Texas Central Railroad Company for penalty in the sum of $175 for failure of that road to furnish cars on demand made by the plaintiff, and also for damages for delay, and against the Gulf, Colorado & Santa Fé Railway Company and the Atchison, Topeka & Santa Fé Railway Company for damages for delay in the shipment of cattle over the roads named. Verdict and judgment was for plaintiff against the Houston & Texas Central for $175, by way of penalty, and for $697.65 damages, and against the Gulf, Colorado & Santa Fé Railway Company for $261.60 damages, and in favor of the Atchison, Topeka & Santa Fé Railway Company.

The first, second, third, fourth, fifth, sixth, and seventh assignments of error are practically the same as those considered by this court in the case of Houston & Texas Central Railroad Company v. Everett, 86 S. W. 17, 11 Tex. Ct. Rep. 862, where we ruled against the contention of appellants on the questions raised by these assignments. But however, in addition to what is said in the opinion in that case, some of these assignments raise a question which we will briefly notice. The Everett Case is based upon Railway v. Mays, 83 S. W. 53, 11 Tex. Ct. Rep. 69, decided by this court, and in which the Supreme Court has refused a writ of error. It was there held that the statute relating to a demand for cars, and prescribing a penalty for failure and refusal to comply with the demand, applied to interstate shipments. In this case, however, the question is raised that the Houston & Texas Central Railroad Company, against whom the judgment for penalty was rendered, was not required to furnish cars to be used beyond its own line by connecting carriers. In consultation in the Everett Case, we considered this question. The demand for cars, as shown in the record in this case, as well as in the Everett Case, does not expressly state that the cars should be used beyond the end of the Houston & Texas Central Railroad. It reads that "for the purpose of making a shipment of cattle from Llano, Texas, to Fairfax, Oklahoma Territory, I desire seven cars at Llano on the 14th day of April, 1903. I herewith tender you onefourth of the freight charges for the use of the cars." The expression "for the use of the cars," mentioned in the statute, evidently refers to the freight rate between the two points for transporting the cattle. In compliance with this request, the Houston & Texas Central Road did furnish the cars, but was guilty merely of delay, which subjected it to the amount of penalty recovered by the plaintiff. If we could concede that this railway company was not bound to furnish cars in transporting commodities to market beyond the line of its road, there was no purpose in this case in furnishing the cars to assert this right. The railway company did furnish cars under circumstances which indicate that it intended that the cars should be used in transporting the cattle to Fairfax, Okl. There is a reservation, it is true, in the contract of shipment, that each carrier would not be responsible for damages resulting beyond its own line; and, in submitting the case to the jury, the court kept in view this question, and the verdict of the jury does not hold either road responsible for damages occurring on other lines of road. If the Houston & Texas Central Road would be entitled to the privilege of limiting the use of its cars to its own line, this right was not asserted or claimed when the contract of shipment was entered into, or when it undertook to furnish the cars in compliance with the request made by the plaintiff. Therefore, in view of the facts in the record bearing upon this question, we deem it unnecessary to decide the question whether the railway company would be bound under the statute requiring it to furnish cars at the written request of the shipper, to be used in transportation beyond the line of its road.

The 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15th assignments of error will be considered together. These assignments substantially raise the question that as the written contract of shipment signed by the plaintiff routes the cattle over the Houston & Texas Central Railway by way of Brenham, to the connecting line, the Gulf, Colorado & Santa Fé Railway, he cannot be heard to urge the claim of damages for wrongfully routing the cattle by way of Brenham, and for the consequent delay and damages resulting to the cattle by reason of the longer route and haul by Brenham. The appellant contends that entering into the written contract routing the cattle by Brenham concludes the plaintiff from recovering any damages for delay that the cattle might have sustained by reason of being so routed. There is evidence in the record to the effect that, when the plaintiff entered into negotiations for the shipment of the cattle and demanded the cars, he paid the freight rate upon the basis of $63.25 per car, which amount he understood to be the usual amount; and the evidence does not indicate that he had any notice or knowledge that a greater amount would be charged if the cattle were routed by way of Lampasas, which the evidence shows to be a much shorter haul than if transported by way of Brenham. The plaintiff demanded that they be shipped by way of Lampasas, and supposed at the time that they would be so shipped, and was not otherwise informed until after the cattle had been delivered to the railway company and placed on board of the cars. Then he was required to sign a contract, practically over his protest, for the shipment of the cattle by way of Brenham, which, as stated before, is a much longer haul, and by reason of which the cattle arrived at their place of destination much later than would have been the case if they had been routed by way of Lampasas or McNeil. Plaintiff's case is, in part, predicated against the Houston & Texas Central upon the wrongful routing by way of Brenham, and for the longer time in transportation that resulted by reason of that fact, and also for some delays that occurred at Llano, and...