Rountree v. Lydick-Barmann Co.

• Decision Date: 21 March 1941
• Docket Number: No. 14195.,14195.
• Citation: 150 S.W.2d 173
• Parties: ROUNTREE v. LYDICK-BARMANN CO.
• Court: Texas Court of Appeals

Page 173

150 S.W.2d 173

ROUNTREE v. LYDICK-BARMANN CO.

No. 14195.

Court of Civil Appeals of Texas. Fort Worth.

March 21, 1941.

Rehearing Denied April 25, 1941.

Appeal from County Court at Law No. 2, Tarrant County; Thomas J. Renfro, Judge.

Action by Lydick-Barmann Company against Jay Rountree, doing business as the Ozark Motor Lines, for the value of certain freight claimed to have been misdelivered by defendant. From a judgment for plaintiff, defendant appeals.

Judgment affirmed.

Frank A. Leffingwell, Robert E. Currie, and Ralph W. Currie, all of Dallas (Leffingwell, Currie & Davis, of Dallas, of counsel), for appellant.

W. S. Margowski, of Fort Worth, for appellee.

SPEER, Justice.

Lydick-Barmann Co., a corporation, to which we shall refer as plaintiff, sued Jay Rountree, doing business as Ozark Motor Lines, to whom we shall refer as defendant, in Justice Court for $149.50, made up of two items, one for $129.50, the value of certain freight alleged to have been misdelivered, and the other for $20, claimed as a reasonable attorney fee, as provided by Article 2226, R.C.S.

The case was tried in the Justice Court and appealed to the County Court at Law No. 2 of Tarrant County, where it was again tried to the court without a jury, and judgment was entered for plaintiff for $129.50, from which judgment defendant has appealed.

The pleadings were oral but were stated fully in the trial court and brought to us in the statement of facts. By the original and supplemental petitions, plaintiff claims a right of recovery alternatively under three counts. They are, substantially, (a) that on June 28th, 1938, it delivered to defendant, a motor freight carrier, an air conditioning unit for transportation from Fort Worth, Texas, to Little Rock, Arkansas; that defendant accepted the shipment and delivered to plaintiff his bill of lading therefor, in which he contracted to deliver said freight to plaintiff at Little Rock, and to notify Crone Company; (b) that on the date mentioned, defendant received the freight for transportation to Little Rock, Arkansas, consigned by plaintiff at Fort Worth, Texas, to itself as consignee at destination, and issued to plaintiff its "Shippers order" bill of lading, whereby defendant agreed to notify Crone Company at Little Rock, and not to deliver the freight until he received plaintiff's shipper's order bill of lading; and (c) if plaintiff be mistaken in either or both of the preceding counts, as to the nature of the bill of lading, then defendant is estopped to deny that the bill of lading on which this shipment moved was a shipper's order contract, because on June 14th, 1938, he had accepted a shipment from plaintiff to be delivered in another state, on the same kind and form of bill, and both he and plaintiff had understood and treated it as a shipper's order bill, and plaintiff relied upon defendant's said acts in receiving from him the bill of lading in this suit. The freight was delivered to Crone Company at Little Rock by defendant, without demanding or receiving the original bill of lading endorsed by plaintiff. On account of the delivery to Crone Company, plaintiff lost the value of its merchandise, alleged to be $129.50.

In so far as is necessary to state, defendant's answer consisted of a general denial and specially that the contract of shipment was in writing and was fully performed by him; that he had delivered the merchandise in conformity with the contract and bill of lading under which it moved, and prayed that plaintiff take nothing.

The record before us conclusively shows that plaintiff has its office and domicile at 2611 West Seventh Street, in Fort Worth, Texas, that defendant is a common carrier of interstate freight, under the rules and regulations of the U.S. Interstate Commerce Commission, and the regulations of such Motor Freight Lines as that operated by defendant. That the shipment was received by defendant at the time alleged and it issued its bill of lading therefor, which on its face was captioned, "Uniform Motor Carrier Straight Bill of Lading—Original—Not Negotiable—Domestic." The bill acknowledged receipt of the freight from plaintiff at its street address in Fort Worth, Texas, "Consigned to Lydick-Barmann Company (plaintiff), destination 616 street, Louisiana City, Little Rock County, Ark. State. Notify Crone Company." The bill of lading described the merchandise, was signed by both plaintiff and defendant, acting through their respective agents, and was endorsed in blank by plaintiff. The undisputed evidence further shows that plaintiff has no office or agent at the street address in Little Rock, as given in the bill of lading. The merchandise was delivered to Crone Company. Because of this delivery by defendant the plaintiff lost the value of its goods, shown to be $129.50.

We do not believe that plaintiff's right of recovery is dependent upon whether or not the bill of lading under which the shipment moved was a shipper's order billing. It is clear that if it was a shipper's order contract, which would obligate the defendant (the carrier) not to deliver the merchandise until the endorsed bill of lading was produced and delivered to him, and delivery was made as in this case, without obtaining the bill, there would be liability. As we view it, we need not determine whether or not it was a shipper's order contract, although under one count in plaintiff's pleadings, it is claimed to be such. In support of this contention, one of plaintiff's officers testified that when defendant's agent called for the freight, he was informed that plaintiff had "an order notify shipment for him." The agent furnished the blank bill of lading that was used; the plaintiff endorsed the bill of lading and attached a draft on Crone Company for the purchase price of the merchandise, and sent both to a Little Rock bank for collection and delivery of the bill of lading; the draft was not paid; and both were returned to plaintiff. The bill of lading, as above indicated, contained the words, "Notify Crone Company". The word "notify" in bills of lading is only required by the U. S. ICC Act, in shipper's order contracts. The rules also require that "straight" billing contracts be printed on white paper and that "Shipper's Order" contracts be printed on yellow paper. See "National Motor Freight Classification No. 3", issued February 21st, 1938, pages 149A and 152A, introduced in evidence by defendant. The bill in this case was printed on yellow paper, and was endorsed by the shipper, which is only required in "Shipper's Order" bills of lading. Upon the other hand, the "Classification Rules" referred to provide that straight bills shall read: "Consigned to" some person, firm or corporation (plaintiff in this case) while a shipper's order bill of lading is required, among other things, to provide for the name and address of the consignor, and consigned to "the order of" the person, firm or corporation named as consignee. As stated above, we find it unnecessary to discuss in detail the nature and effect of the...