Railway Express Agency v. Hueber

• Decision Date: 03 October 1945
• Docket Number: No. 11525.,11525.
• Citation: 191 S.W.2d 710
• Court: Texas Court of Appeals
• Parties: RAILWAY EXPRESS AGENCY, Inc., v. HUEBER.

Page 710

191 S.W.2d 710

RAILWAY EXPRESS AGENCY, Inc., v. HUEBER.

No. 11525.

Court of Civil Appeals of Texas. San Antonio.

October 3, 1945.

Rehearing Denied November 14, 1945.

Second Rehearing Denied December 19, 1945.

Appeal from County Court at Law No. 1, Bexar County; McCollum Burnett, Judge.

Action by F. A. Hueber against the Railway Express Agency, Inc., for damages for loss of articles in transit or while stored by defendant. From an adverse judgment, defendant appeals.

Affirmed.

C. W. Trueheart, of San Antonio, for appellant.

Egbert Schweppe, of San Antonio, for appellee.

MURRAY, Justice.

This is an appeal from a judgment of the County Court at Law No. 1 of Bexar County, in favor of F. A. Hueber against Railway Express Agency, in the sum of $173.

From the judgment the Railway Express Agency has appealed.

Appellee, Hueber, allegedly shipped some gold and silver nuggets, foreign coins and other articles of unusual value, from Los Angeles, Cal., to San Antonio, Tex., which were allegedly lost by the Express Agency either in transit or after they arrived in San Antonio and were stored by the Agency. The trial was by the court without the intervention of a jury.

Appellant's first two points present the contention that the evidence was insufficient to support a finding that the valuable articles alleged to have been lost were ever delivered to the Express Agency in Los Angeles. We overrule this contention. Appellee testified that he packed the articles in a carton, tied and sealed it, and delivered it along with another carton to the clerk of the Shoreham Hotel at Los Angeles. He instructed the clerk to call the Express Company and have them pick up the cartons for shipment to San Antonio. Appellee left before the Express Company picked up the cartons, but he was mailed a uniform express receipt from the Company, and in due time received notice of the arrival of the cartons in San Antonio. He went to the office of the Express Company, saw the cartons, and found them to be in the same condition as when he had delivered them to the clerk in Los Angeles. He did not examine them closely but only viewed them from a distance of some twelve or fifteen feet. Appellee then made arrangements with the Express Company to store the cartons, as he did not wish to take them out for some time. Some six months later when he finally took the cartons out of storage, the one containing the valuables was broken open and the valuables were missing.

Appellant's specific point is that the clerk, porter, or some other employe of the hotel, or even some bystander, had an opportunity to take the valuables from the carton before it was ever delivered to the employes of the Express Company, and therefore the evidence fails to show that the Express Company ever actually received the valuables. These circumstances were matters which could properly be considered by the trier of facts, but the trial judge, whose duty it was to consider and weigh all such matters, has found, at least impliedly, that the Express Company did receive these valuables, and such finding is supported by substantial evidence. 3 Tex.Jur. p. 1102, § 771.

Appellant's third point presents the contention that inasmuch as the Express Company issued a uniform express receipt containing a provision to the effect that the Express Company was not to be liable for the loss of articles of extraordinary value, unless they were enumerated on the receipt or unless such loss was caused by the negligence of the Express Company, there could be no liability on its part herein, as the lost articles were not enumerated in the receipt. It is admitted that the valuable articles were not enumerated in the receipt and that such articles were of extraordinary value. If the articles had been called to the attention of the Express Company, a higher rate would have been charged for their transportation. As a matter of fact, they would have been taken out of the carton and shipped separately and handled with a great deal more care. It is also clear that before the Express Company can complain because of the nondisclosure of the articles it must have advised the shipper of the higher rate and called upon him to make disclosure. Galveston, H. & S. A. R. Co. v. Quilhot, Tex.Civ.App., 123 S.W. 200; Head v. Pacific Express Co., 60 Tex.Civ.App. 169, 126 S.W. 682; Huie v. Lay, Tex.Civ.App., 170 S.W.2d 823. The company attempts to excuse itself for not doing this, first, because the cartons were marked "Mdse." and, second, because appellee left the hotel before the employes of the Express Company arrived to pick up the articles, and was not present to be questioned as to the contents of the cartons, or to be advised of the higher rate for the shipment of valuables. We do not feel that these circumstances change the situation. The Express Company could have refused to accept the cartons until some one advised it of the contents, but, be that as it may, we feel that the evidence is sufficient to show that the loss was caused by the negligence of the Express Company and therefore it would become immaterial as to whether the articles were listed or not.

When the cartons were placed in storage they were tied and sealed, and in the same condition as when they were left at the hotel for shipment. When they were taken out of storage the carton containing the valuables was broken open and tied together with an old rope that appellee had never seen before. The...