Missouri, K. & T. Ry. Co. v. Stoner

• Decision Date: 15 November 1893
• Citation: 23 S.W. 1020
• Parties: MISSOURI. K. & T. RY. CO. v. STONER.
• Court: Texas Court of Appeals

23 S.W. 1020

MISSOURI. K. & T. RY. CO. v. STONER.

Court of Civil Appeals of Texas.

November 15, 1893.

Appeal from Cooke county court; J. E. Hayworth, Judge.

Action by P. B. Stoner against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

R. C. Foster and A. E. Wilkinson, for appellant. Potter, Potter & Giddings, for appellee.

HEAD, J.

Appellee sued appellant to recover damages for the conversion of three head of Holstein cattle, and also the statutory penalty for their detention for six days after tender of the amount of freight due, as shown by the bill of lading. Judgment was rendered in his favor in the court below for $350, the value of the cattle, and $200 penalty, from which this appeal is taken. Appellee's petition charged that the penalty was incurred while appellant was in the hands of receivers, but it had since assumed all obligations incurred by them. In Bonner v. Association, (Tex. Civ. App.) 23 S. W. Rep. 317, it is held that receivers of a railroad are not subject to the penalty imposed by the statute upon which this suit is based. The statute only imposes the penalty upon railroads, for the acts of their officers, agents, or employes, and not upon carriers generally. 2 Sayles' Civil St. art 4258a, § 3. And it is well settled that one suing for a penalty must recover, if at all, according to the terms of the statute. Schloss v. Railway Co., 85 Tex. 601, 22 S. W. Rep. 1014. A receiver of a railroad is neither its officer, agent, nor employe, but is the officer of the court making the appointment. Turner v. Cross, 83 Tex. 218, 18 S. W. Rep. 578. We therefore think appellant was not liable for the penalty allowed.

The bill of lading was issued by the Newport News & Mississippi Valley Company at Fulton, Ky., and stipulated for a through freight rate to Gainesville, Tex., of $1.07 per 100 pounds, but did not name its connecting carriers, and limited its own liability to its line. It had no contract or arrangement with appellant for the issuance of such bills, nor is it charged in appellee's petition that any partnership or joint traffic arrangement existed between these companies. Appellant did have a joint tariff of rates over its own and connecting lines from Memphis to Gainesville, which seems to have been made under such circumstances as to subject these lines to the penalties prescribed by the interstate commerce law. This rate was $1.23 per 100 on an estimated weight for live stock such as these. These cattle were transported by the carrier which made the contract from Fulton to Memphis, and there delivered to a connecting carrier, which paid its charges, and conveyed them to Waggoner, in the Indian Territory, and there delivered them to appellant, which paid all the previously accrued charges, and completed the carriage to Gainesville. The charges paid by appellant when it received the cattle were according to its regular tariff of rates, and it had no notice of a special contract at a lower rate until appellee exhibited his bill of lading at Gainesville, after the arrival of the stock there. Upon these facts, the court gave the following charge to the jury: "It is the duty of the railway company to transport and deliver to the consignee all freight received by it for shipment, and if such shipment is made under a through bill of lading, fixing and providing the through rate of freight, and if such shipment is made under such bill of lading, and none other, then and in that event all railroads over which such shipment is made are bound by such through rate, except it be a connecting line that makes the connection in a state where, by reason of some statute, such line is compelled to accept and transport all shipments tendered it by such connecting line." It will thus be seen that the court below held the law to be that whenever one carrier receives goods from another, destined to a point on its line, without making a new contract, it thereby becomes a party to, and bound by, the contract made by the initial carrier with the owner, whether it has notice of its terms or not. We do not understand this to be the law. When goods are properly tendered to a common carrier for shipment, the common law requires it to receive them; and, if no special contract is made for compensation, it...