A. L. Wolff & Co. v. Missouri, K. & T. Ry. Co.

• Decision Date: 12 January 1927
• Docket Number: (No. 720-4642.)
• Citation: 289 S.W. 1000
• Parties: A. L. WOLFF & CO. v. MISSOURI, K. & T. RY. CO. et al.
• Court: Texas Supreme Court

289 S.W. 1000

A. L. WOLFF & CO. v. MISSOURI, K. & T. RY. CO. et al.

(No. 720-4642.)

Commission of Appeals of Texas, Section B.

January 12, 1927.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Sidney E. Wolff and another, copartners in trade under the firm name and style of A. L. Wolff & Co., against the Missouri, Kansas & Texas Railway Company and others. Judgment for defendants was reversed, and the cause remanded as to defendant United States Shipping Board Emergency Fleet Corporation, and otherwise affirmed (283 S. W. 250), and plaintiff and defendant Fleet Corporation bring error. Affirmed.

Etheridge, McCormick & Bromberg and Paul Carrington, all of Dallas, for plaintiff in error.

Henry Zweifel, U. S. Atty., and N. A. Dodge, Asst. U. S. Atty., both of Fort Worth, and Edw. F. Henriques, Asst. U. S. Atty., of New Orleans, La., for Shipping Board.

Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for defendants in error.

SPEER, J.

The following brief statement by the Court of Civil Appeals is sufficient for the purposes of this opinion:

"Sidney E. Wolff and Alvin A. Wolff, copartners in trade under the firm name and style of A. L. Wolff & Co., plaintiffs in error, brought this suit against defendants in error, Missouri, Kansas & Texas Railway Company of Texas, a corporation, C. E. Schaff, receiver of and for said railway corporation, Galveston Wharf Company, a corporation, and United States Shipping Board Emergency Fleet Corporation, a corporation, alleging that the plaintiffs had delivered to the defendant Schaff, as receiver of said railway company, at Dallas, on or about August 31, 1920, 15 bales of cotton for transportation to Manchester, England, then obtaining a through bill of lading to their order for the carriage by the defendants of such cotton; that the defendants did not safely transport and deliver the cotton as they had each contracted to do as connecting carriers and as agents, respectively, for each other, but, on the contrary, wholly failed so to do, the cotton being destroyed by fire at Galveston, Tex., while in the custody, control, and possession of all the defendants as connecting common carriers and as agents for each other on or about September 30, 1920; that, after such fire, defendants salvaged as much as possible, realizing, however, from the plaintiffs' cotton the sum of only $34.50, which sum they paid to plaintiffs, whereby defendants became liable to plaintiffs for the value of the cotton destroyed, less the amount of salvage paid to plaintiffs, but had wholly failed and refused to pay plaintiffs, to their damage in the sum of $3,750. * * *

"In the alternative, plaintiffs alleged that, if the defendants are not otherwise liable, and as to each defendant they should be held not otherwise liable, the negligence of the defendants, and each of them, was the proximate cause of the destruction of the cotton by fire."

The trial court instructed a verdict for the defendants, upon which it entered judgment, and the Court of Civil Appeals reversed and remanded the cause as to the Fleet Corporation, but otherwise affirmed the judgment. 283 S. W. 250. The writ was granted because the Supreme Court was not satisfied that the wharf company was entitled to a directed verdict, and desired to look further into this feature of the...