Panhandle & S. F. Ry. Co. v. Hubbard

• Decision Date: 20 December 1916
• Docket Number: (No. 1080.)
• Citation: 190 S.W. 793
• Parties: PANHANDLE & S. F. RY. CO. et al. v. HUBBARD.
• Court: Texas Court of Appeals

190 S.W. 793

PANHANDLE & S. F. RY. CO. et al. v. HUBBARD.

(No. 1080.)

Court of Civil Appeals of Texas. Amarillo.

December 20, 1916.

Appeal from Hale County Court, W. B. Lewis, Judge.

Action by B. A. Hubbard against the Panhandle & Santa Fé Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, Geo. Thompson, of Ft. Worth, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellants. W. W. Kirk and Y. W. Holmes, both of Plainview, for appellee.

HALL, J.

The following statement of the nature and result of the suit is adopted from appellee's brief:

"Appellee, B. A. Hubbard, brought this suit in the county court, August 28, 1915, against appellants, the Panhandle & Santa Fé and the Texas & Pacific Railway Companies, for alleged damages to an automobile shipped by him from Plainview to Weatherford, Tex., on October 7, 1913, consigned to H. G. Gilbert, alleging that the damages occurred in transit, and the damages being the loss of a great number of parts and injury to two parts to the extent of worthlessness; that the reasonable market value at destination in the condition in which the automobile should have arrived was $700; that the reasonable market value in the condition in which the same did arrive was $405, and further for conversion of the automobile in the condition in which the same did arrive at destination, the conversion occurring in either one or two ways, viz. the first alleged being that consignee refused to accept the automobile by reason of its damaged condition, and that when plaintiff called at Weatherford to pay the proper freight charges thereon and to receive same the agent of defendants at destination demanded payment of plaintiff excessive freight charges, which he refused to pay, and the same sued for in this instance of conversion being $405, the alleged reasonable market value of the car at destination at the time of arrival, the second instance of conversion being alleged that thereafter, without the knowledge or consent of plaintiff, the defendants removed the car from destination to Weatherford, thereby converting the same, and the sum sued for in this instance being whatever the reasonable market value of the car might be at destination at the time of such removal as proof might show upon trial, and setting out that freight charges had not been paid, and asking for judgment against the defendants in the sum of $700, less proper freight charges."

Defendants answered by general demurrer, special exceptions, general denial, plea of two-year statute of limitation; that the shipment arrived at destination as alleged by plaintiff, but that it arrived in the same condition in which it was received by them for shipment; that they had tendered the automobile to the consignee at destination upon his paying freight charges to the amount of $52.80; that freight charges and demurrage at the time of suit was $104.40, for which they ask judgment. The answer also tendered the automobile to plaintiffs upon payment of said sum.

The issue of limitation is raised by several assignments. It is shown that the shipment was made from Plainview October 7, 1913, and arrived at Weatherford, its destination, October 12, 1913. The consignee was notified of its arrival October 13, 1913. It was understood that consignee would pay the freight. Appellee testified that he was notified by appellants' agent at Weatherford about ten days after its arrival there that appellee would not accept the automobile.

The original petition was filed August 28, 1915, and citations were issued the same day. The first regular session of the county court convened September 6, 1915, and the...