Mistrot-Calahan Co. v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 15 January 1919
• Docket Number: (No. 6005.)
• Citation: 209 S.W. 775
• Parties: MISTROT-CALAHAN CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
• Court: Texas Court of Appeals

209 S.W. 775

MISTROT-CALAHAN CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.

(No. 6005.)

Court of Civil Appeals of Texas. Austin.

January 15, 1919.

On Motion for Rehearing, February 12, 1919.

Rehearing Denied March 19, 1919.

Appeal from McLennan County Court; Jas. P. Alexander, Judge.

Suit by the Mistrot-Calahan Company against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

W. B. Carrington, of Waco, for appellant.

W. E. Spell, G. H. Penland, and Spell, Boggess, Naman & Penland, all of Waco, for appellee Missouri, K. & T. Ry. Co. of Texas.

Stribling & Stribling, of Waco, for appellee Southern Pac. Co.

JENKINS, J.

This suit was brought to recover the value of four cases of shoes shipped to appellant from Boston, Mass., three cases of which were lost in the Galveston storm of 1915, and the other damaged so as to render it worthless to appellant. The defense was that the loss was occasioned by the act of God.

The appellant contends that the shipment was a through shipment to Waco. The appellees insist that the shipment was to Galveston.

Whether it was the one or the other, it was an interstate shipment. The loss occurred while the goods were in the possession of appellee, the Southern Pacific Company. If the shipment was to Galveston, the appellee the M., K. & T. Ry. Co. is not responsible for the loss. On the other hand, if the shipment was to Waco, the M., K. & T. Ry. Co., being a connecting carrier for the transportation of said goods, if the Southern Pacific Company is liable under the facts of the case, the M., K. & T. Ry. Co. is also liable under the Carmack Amendment, unless its failure to receive and forward the goods was due to the fault of appellant.

The court instructed a verdict for the M., K. & T. Ry. Co. We do not know whether this instruction was based upon the finding of the court, as a matter of law, that the shipment was not sent to Waco, or that the goods were detained at Galveston from August 4th, the time of their arrival until August 16th, the day the storm reached Galveston, by reason of the fault or negligence of Seifer, the agent of appellant. The evidence would have justified a finding in favor of the M., K. & T. Ry. Co. upon either of these theories, but we do not think it was sufficient to establish either theory as a matter of law. Hence, if judgment should have been rendered against the Southern Pacific Company, it was error to peremptorily instruct the jury to return a verdict in favor of the appellee the M., K. & T. Ry. Co.

The court submitted to the jury, under appropriate instruction, the issue as to whether the loss was occasioned by the act of God. The verdict of the jury, being for the defendants, shows that they found in favor of appellees on this issue. The evidence is sufficient to support such finding. Such being the case, judgment was properly entered for appellees unless the loss was occasioned by the negligence of the Southern Pacific Company. The only negligence on the part of the Southern Pacific Company suggested by the evidence was in not having the floor of its warehouse elevated sufficiently to have kept the goods above the water during the storm. If such contingency might reasonably have been anticipated, and was not provided against, the loss did not occur from the act of God. The act of God is when the result is from such forces in nature as could not reasonably have been foreseen and provided against. Irrigation Co. v. Dodd, 162 S. W. 946; Words & Phrases, vol. 1, p. 118.

The evidence shows that appellees, in common with all people in Galveston, had warning from the weather bureau that a storm was approaching. Such warnings were frequent at that season of the year. In none of the previous storms, unless in that of 1900, had the water been high enough in Galveston to have injured the goods in the manner in which they had been stored. Subsequent to the storm of 1900, the sea wall was erected on the Gulf side of the island, some 17 feet in height. In the light of the facts in reference to the storm of 1900, this was deemed sufficient to protect Galveston from the waters of the Gulf. It proved insufficient for this purpose in the storm of 1915, which would indicate that this storm was of greater violence than that of 1900. The testimony of several witnesses indicates that such was the fact. The storm of 1915 threw a schooner of 800 or 900 tons capacity over the wall, and did serious damage to property behind the sea wall, and caused the loss of at least 150 lives.

The loss having been occasioned by the act of God, without negligence on the part of the Southern Pacific Company, it is immaterial whether such company was in possession of the goods as a common carrier or as a warehouseman.

There is one other issue presented by the pleadings, the evidence, and the offer of evidence. The appellant alleged that it presented its claim to the receiver of the M., K. & T. Ry. Co., and that it stamped the same "Vouchered," which meant that the claim had been passed upon, approved, and ordered paid by said receiver, acting through the claim department. Appellant offered to prove by a witness, who qualified as an expert in such matters, that such was the meaning of the word "Vouchered." The court sustained an objection to this testimony, and appellant assigns error on such action of the court.

We overrule this assignment for the reason that, if the M., K. & T. Ry. Co. was not liable on said claim, its promise to pay the same was without consideration, and therefore not binding upon it. There is nothing in the pleadings or evidence to indicate that such promise, if made, partook in any respect of the nature of a...