Railway Exp. Agency, Inc. v. Miller

• Decision Date: 10 May 1961
• Docket Number: No. 10842,10842
• Citation: 346 S.W.2d 905
• Parties: RAILWAY EXPRESS AGENCY, INC., and American Airlines, Inc., Appellants, v. John L. MILLER and Fay Miller d/b/a Centex Turkey Hatchery, Appellees.
• Court: Texas Court of Appeals

Page 905

346 S.W.2d 905

RAILWAY EXPRESS AGENCY, INC., and American Airlines, Inc., Appellants, v. John L. MILLER and Fay Miller d/b/a Centex Turkey Hatchery, Appellees.

No. 10842.

Court of Civil Appeals of Texas, Austin.

May 10, 1961.

Rehearing Denied May 31, 1961.

Arthur P. Bagby, John C. Foshee, Austin, for appellant Ry. Express Agency, Inc.

Buck & Buck, Robert P. Clines, Fort Worth, for appellant American Airlines, Inc.

Lawrence L. Bruhl, Llano, L. Hamilton Lowe, Austin, for appellees.

GRAY, Justice.

Appellees, John L. Miller and Fay Miller, doing business as Centex Turkey Hatchery, sued appellants, American Airlines Incorporated and Railway Express Agency, to recover damages sustained to a shipment of 3,000 turkey poults.

Appellees delivered the poults to American at Fort Worth for shipment to the Idaho Poultry Company at Boise, Idaho. At that time American received the poults and issued to appellees an air-freight uniform air bill reciting that the poults were consigned by appellees to Idaho Poultry Company at Boise, Idaho. It recited:

                --------------------------------------------------
                "Destination Airport City      Consignee's No
                 At Portland, Oregon
                --------------------------------------------------
                Routing: Airline Routing Applies Unless Shipper
                          Inserts Specific Routing Here
                --------------------------------------------------
                

* * *

* * *

'It is mutually agreed that the goods herein described are accepted in apparent good order (except as noted) for transportation as specified herein, subject to governing classifications and tariffs in effect as of the date hereof which are filed in accordance with law. Said classifications and tariffs, copies of which are available for inspection by the parties hereto, are hereby incorporated into and made part of this contract.

                 * * *
                 * * *-----------------------------------------------
                "No. of  Description of Pieces           Weight
                Pieces   and Contents
                -----------------------------------------------
                30       Boxes Broadwhite
                         Turkey Poults                    450#
                -----------------------------------------------
                         (Live Baby Poults 100 per box)
                -----------------------------------------------
                         Instructions to Carrier
                -------                                  ------
                

Leave Amon Carter Field via American Air Frt. Arrive at Portland, Oregon airfield--Advise Railway Express to pick up, truck direct to Boise, Idaho.'

The poults were received by American at 8:40 p. m. on April 22, 1957 and were carried by it to Los Angeles, California where they were delivered to Flying Tigers, another air carrier but not a party here, at 7:50 a. m. on April 23, 1957 and were then carried to Portland, Oregon where they were delivered to Railway Express on April 25 at about 6:30 or 7:30 a. m. and on that day were delivered to Idaho Poultry Company at Boise, Idaho at about 10 o'clock p. m. No representative of appellees accompanied the shipment.

Within a short time after the poults were delivered to Railway Express (not more than 45 minutes) one of its employees said his attention was called to the shipment. He said:

'A. My attention was called to this shipment from the odor from them, and I opened the boxes--there were several of them--and looked at them, and they were in a dying condition and lots of them were already dead. That was possibly within 45 minutes after they had come from the airport. I called Mr. Lemme's attention to the condition of the shipment. He is the terminal supervisor. Later they were loaded on the train I was going out on, U. P. Train 12.'

Another witness said he could tell that the poults had been dead quite a while due to their condition.

The poults were carried by train from Portland to Huntington, Oregon and from there by truck to the consignee at Boise accompanied by an employee of Railway Express. A total of 1,838 poults died before delivery and 600 afterwards. Their stipulated value was 55 cents each.

At a nonjury trial a judgment for appellees for $1,010.90 against appellants jointly and severally was rendered.

The trial court filed findings of fact and conclusions of law. However the facts are not in dispute but the contentions of appellants are to the effect that such facts do not show them to be liable.

The transportation of the poults from Fort Worth to Portland was by air and the fact that they were transported from Portland to Boise by a land carrier would not change the character of the shipment from air commerce. 49 U.S.C.A. Sec. 171, that section being in effect at the times relevant here. Also appellants are common carriers. Arrow Aviation, Inc. v. Moore, 8 Cir., 266 F.2d 488, 73 A.L.R.2d 337. 6 Am.Jur., Aviation, p. 30, Sec. 47. Also Secs. 45 and 58.

49 U.S.C.A. Sec. 483, as effective at all relevant times, required air carriers to file tariffs with the Civil Aeronautics Board. When so filed and approved by the Board the tariffs become a part of the transportation contract.

The portion of the tariffs relied on by American is:

'Rule No. 3.2

'(a) The carrier shall not be liable for loss, damage, delay or other result caused by:

1. * * * perils of the air * * *

3. The nature of the shipment, or any defect, characteristic or inherent device thereof.

'(b) The carrier shall not be liable for loss, damage, deterioration, destruction, theft, delay, default, misdelivery, non-delivery or any other result not caused by the actual negligence of itself, its agents, or employees, acting within the scope of their authority, or not occurring on its own line or in its own service or for any act, default, negligence, failure or omission of any other carrier or any other transportation organization.'

American accepted the poults at Fort Worth and then contracted for transportation of the poults from Fort Worth to Boise. This contract was for through interstate transportation. 11 Tex.Jur.2d Sec. 689, p. 475. In so doing American elected to treat connecting carriers as its agents for the transportation and delivery of the poults. Atchison, T. & S. F. Ry. Co. v. Word, Tex.Civ.App., 159 S.W. 375. Er. ref. The connecting carriers undertook the transportation and delivery of the poults under the contract made for them by their principal, American. Burd v. San Antonio Southern Ry. Co., Tex.Com.App., 261 S.W. 1021. Gulf C. & S. F. Ry. Co. v. Hines, Tex.Com.App., 250 S.W. 1013. It is on this contract that appellees sued.

American carried the poults to Los Angeles and there delivered them to Flying Tigers for transportation to Portland. Thereby American adopted Flying Tigers as its agent to transport the poults from Los Angeles to Portland. Gulf, C. & S. F. Ry. Co. v. Hines, supra. Atchison, T. & S. F. Ry. Co. v. Word supra, citing Atlanta Coast Line Ry. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 169, 55 L.Ed. 167, 31 L.R.A.,N.S., 7. There the Supreme Court of the United States said:

'Reduced to the final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one state, to be transported to a point in another, involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence.'

The contract made by American for through transportation and delivery of the poults inured to the benefit of connecting carriers and their liability is to be measured by its terms. Atchison, T. & S. F. Ry. Co. v. Word supra and authorities cited at page 380 of 159 S.W., column 2.

American says that a recovery against it cannot be sustained because under the applicable tariffs its liability is limited to acts of negligence, or causes of damages occurring on its own line. This would be a construction of the tariffs too...