Missouri, K. & T. Ry. Co. of Texas v. Stark Grain Co.

• Decision Date: 09 November 1910
• Citation: 131 S.W. 410
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. STARK GRAIN CO.
• Court: Texas Supreme Court

Page 410

131 S.W. 410

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v.STARK GRAIN CO.

Supreme Court of Texas.

November 9, 1910.

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

Action by the Stark Grain Company against the Missouri, Kansas & Texas Railway Company of Texas and others.Judgment in the Court of Civil Appeals(120 S. W. 1146), affirming a judgment against defendant named and another, and they bring error.Affirmed as to one of the defendants, and reversed and rendered as to the other.

Coke, Miller & Coke and Garnett & Hughston, for plaintiffs in error.J. R. Gough and Abernathy & Abernathy, for defendant in error.

WILLIAMS, J.

The defendant in error (plaintiff below) sued the Missouri, Kansas & Texas Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Houston & Texas Central Railway Company to recover damages sustained by the plaintiff from delay in the transportation of certain cars of wheat delivered to the first-named company at St. Louis and shipped over the three roads in the order named to Plano, Tex.The last-named company was discharged by the judgment below, and the two first named are complaining in this court of the affirmance of a judgment against them by the Court of Civil Appeals.

One of the defenses set up by them was that the delay was caused by an unprecedented rush of business over their roads which no degree of care on their part could have anticipated and provided for, by which their capacity for transportation had been overtaxed.The answers showed that the condition existed when the wheat was received for transportation and failed to show that any contract was made with, or any notice given to, the shipper with reference to it.Each answer did allege that the condition "was generally known and all contracts made by this defendant with reference to the shipment of grain on the lines where such congested conditions existed and were made in reference to said congested conditions and in contemplation thereof, and with full notice thereof on the part of shippers that said congested conditions existed, and that none of the said contracts of shipment were made in reference to or in contemplation of conditions of traffic during seasons when the movement was light."Exceptions were sustained to these answers, which action was affirmed by the Court of Civil Appeals on the ground that the pleas did not "allege any contract of exemption for delay on account of rush of business," and also because no harm was done by the sustaining of the exceptions, inasmuch as the evidence showed conclusively that there was no such exemption "stipulated for."

We did not agree entirely with this holding, and for that reason granted the writ of error.The undertaking alleged by the plaintiff was not for a delivery within any stipulated time, but of the one ordinarily assumed by common carriers in receiving goods for transportation to deliver "with diligence and dispatch and in due course of business," the breach of which was alleged to have consisted in the failure of the defendants to exercise due care and diligence in making such delivery, from which breach the delay was alleged to have resulted.To meet such a case as this, the defendants had the right to allege any state of facts which the law recognizes as an excuse for delay where the duty of the carrier is only that which the law in the absence of express contract imposes.The true question, therefore, was not whether or not the defendants had secured exemption from liability for delay by express stipulation, but was whether or not the facts alleged exculpated them from the charge of a breach of duty in failing to transport and deliver with reasonable diligence.Nor would the question be different if it arose on the evidence rather than on the pleading.The ordinary bill of lading containing no agreement to deliver at or within any specified time and therefore imposing only the duty to carry and deliver within a reasonable time would not be contradicted or varied by evidence showing the circumstances controlling the transportation and delivery of the particular shipment to aid the inquiry whether or not, considering those circumstances, the delivery in question was made within such reasonable time, and the dependent question whether or not the delay was negligent.But, where a delay out of the ordinary course has occurred which the carrier seeks to excuse by showing the existence of unusual conditions, it assumes the affirmative, and must by its pleading and evidence show every fact essential to the legal validity of its excuse; and the pleadings of the defendants were insufficient, in that they failed to allege that any of them, before receiving the wheat for transportation, notified the shipper of the condition, then existing and known to them, which was the cause of the delay.Such notice the authorities, with practical unanimity, hold to be essential to such a defense.It is different where the shipper attempts to make the carrier liable for refusing to accept goods for transportation.Such a defense of its refusal as that here attempted is allowed in such cases; and...