Houston E. & W. T. Ry. Co. v. Houston Packing Co.

• Citation: 221 S.W. 316
• Decision Date: 19 December 1919
• Docket Number: (No. 7805.)
• Court: Court of Appeals of Texas
• Parties: HOUSTON E. & W. T. RY. CO. v. HOUSTON PACKING CO.

221 S.W. 316

HOUSTON E. & W. T. RY. CO. v. HOUSTON PACKING CO.

(No. 7805.)

Court of Civil Appeals of Texas. Galveston.

December 19, 1919.

On Motion for Rehearing, April 1, 1920.

Appeal from District Court, Harris County; W. S. Hunt, Special Judge.

Action by Houston Packing Company against Houston East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Hutcheson, Bryan & Dyess, of Houston, for appellee.

GRAVES, J.

This action was brought against the Houston East & West Texas Railway Company as a result of the damage en route of a carload of meat, shipped in interstate commerce from Houston, Tex., to Springfield, Mass., under a through bill of lading issued by that railway company. The case was tried upon an agreed statement of facts, in which negligence, causing the amount of damage recovered for, of one of the defendant company's connecting carriers beyond Shreveport, La., was admitted, and judgment for that sum was entered against the defendant.

The railway company appeals, the only question presented in this court being, Which one of two railroads, the I. & G. N. R. R. Co. or the appellant, under the facts in evidence, was the initial carrier of the shipment within the meaning of the Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. §§ 8604a, 8604aa)? It being further conceded that both carriers generally were engaged in inter- and intra-state commerce, and consequently subject to the rules and regulations of both the Interstate Commerce Commission and the Railway Commission of Texas.

We are relieved of setting out any of the agreed stipulations except those bearing upon the issue as to which one of them was the initial carrier. They are these:

"(6) That the plant of the Houston Packing Company is located in the city of Houston, Harris county, Texas, on the International & Great Northern Railroad tracks.

"(7) That on or about the 16th day of March, 1916, the Houston Packing Company loaded HP Car No. 233, being a refrigerator car, and owned by said Houston Packing Company, on the tracks of the International & Great Northern Railroad Company, with 20,878 pounds of meat trimmings.

"(8) That said car of meat was by the International & Great Northern Railroad Company delivered to the Houston East & West Texas Railway Company at 2:20 a. m., on March 17, 1916, with its bunkers seven-eighths full of ice; that said car while in the possession of the Houston East & West Texas Railway Company, on March 17, 1916, was re-iced by placing 1,800 pounds of ice in said car."

"(15) That said Houston Packing Company was an industry situated directly upon the track of the International & Great Northern Railway Company, and, in pursuance to the rules and regulations prescribed by the Texas Railroad Commission for the handling of freight in the city of Houston, said car was switched by the International & Great Northern Railway Company to the I. & G. N. yards in the city of Houston, a distance of about four miles from the plant of the Houston Packing Company; the H. E. & W. T. Railway Company received said car at said yards of the I. & G. N. Railway Company, and issued the through bill of lading to the Houston Packing Company, sued upon herein, which bill of lading is hereto attached and made a part of this agreement."

"(17) That the switching services which were performed by the International & Great Northern Railway Company were absorbed by the H. E. & W. T. Railway Company, and the H. E. & W. T. Railway Company made payment to the International & Great Northern Railway Company in the sum of $5 for switching said car as hereinbefore stated; that said $5 was paid to the International & Great Northern Railway Company out of the through rate charged for this shipment, and no extra charge was made to the shipper for said service. The I. & G. N. Railway Company issued no bill of lading to the Houston Packing Company, and the original bill of lading covering this shipment was issued by the H. E. & W. T. Railway Company, the only services performed by the I. & G. N. Railway Company being the switching services hereinbefore set out."

The bill of lading bore date March 16, 1916, and was therefore issued by the appellant on the same day the car was loaded by the I. & G. N. Railway Company and the day before it was delivered by the I. & G. N. Railway Company at its own yards to the appellant company. It will be further noted that the I. & G. N. did not receive this shipment under any contract of interstate carriage, the limit of its agreement and undertaking, pursuant to the rules and regulations of the Texas Railway Commission, being to switch all cars loaded on its line to the yards of the H. E. & W. T., and there deliver them to it. The only contract here appearing was the one made by the packing company with the appellant, and evidenced by the bill of lading, by which the latter agreed to transport the car through from Houston to its destination in Massachusetts.

We think these facts constituted the appellant company the "initial carrier," as that term is used in the Carmack Amendment, and that the courts have settled the question in favor of this view. They appear to us to have held that by "initial carrier" is meant the one who first contracts to transport the shipment from one state into another, and not the one who first merely receives or handles it in some incidental or subsidiary way, such as was done in the switching service here rendered by the I. & G. N. Indeed, apparently the most nearly applicable case cited by appellant as authority for a contrary doctrine (Barrett v. Northern Pacific Co., 29 Idaho, 139, 157 Pac. 1016) does not uphold it, for after quoting the Carmack Amendment, the court says:

"Under this amendment a common carrier which received goods for transportation from a point in one state to a point in another, if it routes the consignment over the line of another common carrier, makes the latter its agent, and is liable to the owner of the goods or his assigns, for any damage which results from negligence or carelessness in transportation, whether the damage occurs upon its own line or upon that of the carrier to which it delivers the consignment."

The italics are our own, inserted to indicate our conclusion that the court in that case did not intend to hold, as appellant here apparently contends, that the road first receiving the goods, regardless of contract, would be liable for all damages thereafter sustained by the shipment en route upon its interstate journey. See Parker-Bell Lumber Co. v. Great Northern Ry. Co., 69 Wash. 123, 124 Pac. 389, 41 L. R. A. (N. S.) 1064.

The underlying principle of the Carmack Amendment is one of agency, the connecting carriers being made the agents of the initial one for the purpose of taking the goods from the point of...