Kemendo v. Fruit Dispatch Co.

• Citation: 131 S.W. 73
• Parties: KEMENDO et al. v. FRUIT DISPATCH CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 22 June 1910
• Court: Court of Appeals of Texas

Page 73

131 S.W. 73

KEMENDO et al. v. FRUIT DISPATCH CO. et al.^†

Court of Civil Appeals of Texas.

June 22, 1910.

Rehearing Denied October 12, 1910.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by the Fruit Dispatch Company against V. Kemendo, in which defendant filed a cross-action against plaintiff and certain railroad companies. From a judgment for defendant against two of the railroad companies, they appeal. Affirmed in part, reversed in part and remanded.

Baker, Botts, Parker & Garwood and O. L. Stribling, for appellants Houston & T. C. R. Co. and M. L. & T. R. R. & S. S. Co. John W. Davis, for appellee Kemendo. Clark, Yantis & Clark, for appellee fruit company.

RICE, J.

The Fruit Dispatch Company, a New York corporation, doing business in the city of New Orleans, instituted this suit on the 5th day of March, 1908, against V. Kemendo for the recovery of $862 for two car loads of bananas sold by it to him, and which were delivered by it under the contract of sale to him f. o. b. cars at New Orleans on the 1st and 16th days of November, 1906, and were thereafter transported over the lines of railway hereinafter mentioned, and received by him at Waco.

It is conceded that the statement of the nature and result of the suit as made in the brief of appellants is correct. We therefore copy the same so far as relates to the pleadings of Kemendo and the railway companies who were interpleaded by his cross-action:

Kemendo, by way of answer and cross-action, alleged that the car of bananas purchased on November 1st was delivered by plaintiff to Morgan's Louisiana & Texas Railroad & Steamship Company (hereinafter designated "Morgan's Company" for convenience) at New Orleans, for which it issued a bill of lading for said bananas, and consigned in car I. C. 55374 to V. Kemendo, Waco, Tex., via "Katy" Houston (meaning Missouri, Kansas & Texas Railway Company); that on the 16th day of November plaintiff delivered to Morgan's Company at New Orleans the other car of bananas, likewise consigned to Kemendo at Waco, via "Katy" Houston, loaded in car I. C. 52129; that both shipments under the contract of purchase were to be good, sound, green bananas, it being necessary that they be green in order to insure safe shipment, and both shipments were in special cars constructed for the shipment of fruit, and under the contract of shipment each car was to be accompanied by an agent of the Fruit Dispatch Company to destination for the purpose of taking care of said fruit; that Kemendo had directed plaintiff that both cars be shipped via Missouri, Kansas & Texas Railway Company from Houston to Waco, as he had made special arrangements with that company to take special care of said shipments over its route by keeping the vents and plugs in said cars regulated, so as to protect the fruit from climatic changes; that both cars were diverted at Houston to the Houston & Texas Central Railroad Company by the direction and consent of the messengers accompanying said cars, and were delivered to Kemendo by the Central Company at Waco in a damaged condition; that had they been transported over the Missouri, Kansas & Texas Railway from Houston, as directed, they would have been properly cared for under the special arrangement made with that company by defendant, and would have reached him in good condition, and defendant would have long since paid therefor.

By way of cross-action Kemendo averred that the two cars of bananas were delivered to Morgan's Company at New Orleans and transported to Houston over that line and the Louisiana Western and the Texas & New Orleans Railway Company's lines; that at Houston said cars were diverted by the above named three railway companies in violation of the contract of carriage and Kemendo's instructions to the Central Company, and by it carried to Waco and delivered to Kemendo in a damaged condition. It is further alleged that, after said cars of bananas were diverted at Houston and delivered to the H. & T. C. Company, the latter was guilty of negligence in handling and caring for same between Houston and Waco, and both shipments were damaged by reason of improper handling and delay; that the bananas in car No. 55374 were damaged by becoming over-heated, and those in car No. 52129 by being frozen. Both cars were accompanied by messengers to Houston. It is alleged that the railroad companies carrying said shipments were partners, and that the contract of shipment was joint. Kemendo prayed for judgment against all of said railroad defendants for the contract price of the bananas and freight paid by him thereon, asking to go hence as to plaintiff's cause of action, but, should judgment be rendered against him in favor of plaintiff, that he have judgment over against the four railroad companies for a like amount and freight paid and for general relief.

The defendant railway companies filed separate answers, making common defense as to a misjoinder of parties and causes of action, denial of partnership; that said shipments were not made under through bills of lading, but under a contract limiting the liability of each carrier to loss or damage done or suffered on its own line, and that said shipments were made and accepted under bills of lading, whereby it was expressly stipulated that a person termed "a messenger," agent of the shipper, should accompany said shipments for the purpose of taking care of the same as to the regulation of the temperature of said cars, and for that purpose said cars were in the entire control of such messenger, and that said cars were "to be iced or not iced, as said messenger might direct"; that whatever damage had been done to said shipments was the proximate result of the negligence of said messenger, who accompanied said cars, and the violation of the contract under which said shipments were accepted; that, if the shipments were diverted at Houston from the Missouri, Kansas & Texas to the Houston & Texas Central Company, it was done by the messenger in charge of the same or by the Texas & New Orleans Railway Company; that Kemendo was promptly notified of said diversion by the messenger in charge, and, under the contract of shipment, it was his duty to see that the ventilation of said cars was properly looked after, and to ascertain the line over which said shipments were to be brought to Waco, and his failure in this regard was negligence proximately contributing to his loss; that, if there was any damage suffered, it was the result of a strike and stoppage of labor and threatened violence to the property of defendants along their lines of railway over which said shipments were made, and for which defendants are exempt under the express terms of the contract of shipment.

The Texas & New Orleans Railway Company and the Louisiana & Western Railway Company pleaded to the jurisdiction of the court as to the amount involved and the statutes of limitation of two years. The defendant railroad companies also pleaded a general denial as to the cause of action set up by plaintiff as well as that of Kemendo.

The court overruled the general and special exceptions to the misjoinder of parties and causes of action, but directed a verdict in behalf of the plaintiff Fruit Dispatch Company against Kemendo for $971.70, and also in favor of the Texas & New Orleans Railway Company and the Louisiana Western Railway Company, but submitted the case to the jury upon the issues made by the pleadings as between defendants Kemendo and Morgan's Company and the Houston & Texas Central Railroad Company, which resulted in a verdict in behalf of Kemendo for $888 against Morgan's Company and the Houston & Texas Central Railroad Company. While motions for new trial were made in behalf of Kemendo, as well as the two railway companies last named, yet said companies alone have appealed, and by their first assignment insist that the court erred in overruling their special exception to Kemendo's cross-action, wherein they excepted thereto upon the ground that there was a misjoinder of parties and causes of action, and by their proposition thereunder insist that since the cause of action asserted by the Fruit Dispatch Company against Kemendo was ex contractu, and that of Kemendo against them was an action for damages sounding in tort, the same were improperly joined. Appellees, however insist that this objection was waived on the part of appellants, because they first answered to the merits, and could not be heard to thereafter urge special exceptions complaining of the misjoinder. We are inclined to think this objection is well taken. See Rev. St. 1895, arts. 1262, 1268; Stresau v. Fidelli, 1 White & W. Civ. Cas. Ct. App. § 847, and Hill v. Newman, 67 Tex. 265, 3 S. W. 271. It is held that nonjoinder or misjoinder of parties should be pleaded in limine. When defendant has answered by general demurrer and to the merits, it is too late to file special exceptions. See McCreary v. Gaines, 55 Tex. 486, 40 Am. Rep. 818; Moore v. Torrey, 1 Tex. 42; Ryan v. Jackson, 11 Tex. 399. It is further contended by appellees that since this controversy between all the parties grew out of the same transaction, to wit, the sale and shipment by plaintiff to Kemendo of the bananas from New Orleans to Waco, as well as the conduct of both plaintiff and carriers who were brought into the suit by defendant Kemendo, under the liberal discretion vested in our trial courts it did not err in overruling said special exceptions to said cross-action, notwithstanding the issue raised thereby involved matters ex contractu as well as ex delicto. We are inclined to think that this contention is well taken. See Gulf, W. T. & P. Ry. Co. et al. v. Browne, 27 Tex. Civ. App. 437, 66 S. W. 341; Morris v. Davis et al., 31 S. W. 850. It is held in Hooks v. Fitzenreiter, 76 Tex. 277, 13 S. W. 230, and N. Y. L. S. v. Rohrbough, 2 Willson, Civ. Cas. Ct. App. § 216, that the right to sue for the breach of contract and...