Long v. American Ry. Express Co.

• Decision Date: 14 February 1929
• Docket Number: No. 5288.,5288.
• Citation: 30 F.2d 571
• Parties: LONG et al. v. AMERICAN RY. EXPRESS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

30 F.2d 571 (1929)

LONG et al. v. AMERICAN RY. EXPRESS CO.^*

No. 5288.

Circuit Court of Appeals, Fifth Circuit.

February 14, 1929.

Wm. E. Orgain, of Beaumont, Tex., T. W. Davidson, of Dallas, Tex., and W. E. Spell and W. L. Eason, both of Waco, Tex., for appellants.

Palmer Hutcheson, of Houston, Tex. (A. M. Hartung, of New York City, Taylor, Atkinson & Farmer, of Waco, Tex., and Baker, Botts, Parker & Garwood, of Houston, Tex., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is an appeal from a judgment based on a directed verdict for the appellee express company, in an action at law brought against it by appellants to recover damages for delay in the delivery of an express package.

The package in question was accepted by the express company on the afternoon of November 8, 1921, at Waco, Tex., for transportation and delivery to the clerk of the Civil Court of Appeals at Amarillo, Tex.; and was received at the express office in Amarillo on the afternoon or night of the 10th. The 11th was Armistice Day and a legal holiday, and delivery to the clerk was not made until the 12th. That package contained a petition for writ of error and other court papers, by means of which these appellants were seeking to have the Supreme Court of Texas reverse a judgment in favor of one Martin for $14,000 that had been rendered against them by the trial court and affirmed by the Court of Civil Appeals. It appears from the evidence that the Court of Civil Appeals overruled a motion for rehearing in the Martin suit on October 12, 1921, and that the Commission of Appeals recommended to the Supreme Court that the judgment be reversed. However, the Supreme Court held that it was without jurisdiction to consider the case on its merits, and dismissed the writ of error on the ground that the petition therefor had not been filed with the clerk of the Court of Civil Appeals within 30 days after the overruling of the motion for rehearing, as required by law. Long v. Martin, 112 Tex. 365, 247 S. W. 827. Appellants subsequently paid off the judgment, and seek in this suit to recover from the express company the amount thereof, together with interest and costs. Their original petition is not incorporated in the transcript of record. They relied at the trial on two amended petitions. The first alleged a contract to make delivery of a package on or before November 10, and the second a failure to make such delivery within a reasonable time. Both of these amendments were filed after the cause of action was barred by the statute of limitations. In neither of them was the claim advanced that there was any delay in transportation.

The package was shipped by one of the attorneys for appellants. He testified that he told the express company's agent Montgomery that his clients would lose $15,000 unless the court papers were delivered to the clerk on or before the 10th of November. Montgomery denied this, and, in an effort to keep the petition for a writ of error in the Martin suit from being dismissed, the same attorney filed in the Supreme Court an affidavit by Montgomery which contained the following statement: "At the time said package was delivered, as aforesaid, the said Eason stated to the clerk receiving the package and to myself that it contained court papers referring to a law suit involving $15,000.00 and he desired that said package be delivered in Amarillo November 10, 1921, and I stated to said Eason that the Express Company would not guarantee delivery at any specific time, but that barring washouts and other unavoidable accidents and under normal conditions and regular schedules the package ought to reach Amarillo on November 10, 1921."

It is undisputed that the attorney offered to pay more than the regular rate if the express company would agree to make delivery on November 10; that Montgomery refused to accept that offer or to agree on behalf of the express company to make delivery at any particular time or day; and that finally...