San Antonio & A. P. Ry. Co. v. Grady

• Decision Date: 16 December 1914
• Docket Number: (No. 5364.)
• Citation: 171 S.W. 1019
• Parties: SAN ANTONIO & A. P. RY. CO. v. GRADY.
• Court: Texas Court of Appeals

Page 1019

171 S.W. 1019

SAN ANTONIO & A. P. RY. CO. v. GRADY.

(No. 5364.)

Court of Civil Appeals of Texas. San Antonio.

December 16, 1914.

Appeal from San Patricio County Court; P. A. Hunter, Judge.

Action by R. J. Grady against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Kleberg & Stayton and David M. Picton, Jr., all of Corpus Christi, for appellant.

CARL, J.

Appellee, R. J. Grady, sued appellant, San Antonio & Aransas Pass Railway Company, for damages to two cars of watermelons shipped from Sinton, Tex., one car to Corsicana, Tex., and the other to Ennis, but diverted in transit to Hillsboro, Tex. It is alleged that on account of the negligent handling and delay of the railway company the melons in the car that went to Corsicana were ruined, bursted, and bruised in such a way that they were worthless, but would have been worth $140 on the market if they had been properly and promptly delivered; and from the car that went to Hillsboro 171 had been stolen or were missing, valued at $39.20. The plaintiff alleged that both were through shipments, and that he was compelled to pay the freight charges before he obtained the cars, but the freight paid on the Corsicana car was returned to him. Plaintiff also alleges that the railway company contracted to give him free transportation with the shipments, but failed to do so, and he was compelled to pay $20 for railway fare. The total amount sued for was $199.70, and that sum he recovered.

Appellant pleaded, among other defenses, a contract limiting its liability to its own line, which terminated at Houston, Tex., and to delivery there to its connecting carrier, which in this instance was the Houston & Texas Central Railway Company. Both cars were loaded at Sinton, consigned to the plaintiff, and the destination of San Antonio & Aransas Pass car No. 7143 was Corsicana, routed by way of Houston and thence of the Houston & Texas Central Railway to point of destination, while the other car was billed to Ennis, but changed to Hillsboro. Both contracts or bills of lading show that the cars were shipped from Sinton to Houston, and a clause is contained in each contract, as follows:

"Section 2. If shipment is destined to a point off this company's road, it is agreed that this is no contract for through shipment, and this company's liability as a common carrier shall terminate on tender of delivery to a connecting carrier."

Other issues will be stated in the course of the opinion.

The first assignment complains of the action of the court in giving paragraph 9 of the charge to the jury, which is as follows:

"You are further instructed that plaintiff's contract with the defendant shows a through shipment of said melons, and the defendant cannot limit its liability for any damages occurring to said melons, on account of the injury or damage to said melons, occurring on any connecting lines over which said melons were transported. If said melons were lost or damaged anywhere en route to their destination, the defendant in this case would be liable for the full amount of the damages which plaintiff had sustained, regardless of whether the loss or injury occurred on its own line, or on the line, of the connecting carrier transporting said melons."

The objections are: (a) Because it states an incorrect principle of law; (b) because the first part thereof is on the weight of the evidence; (c) because the first part thereof is on the weight of the evidence as to any contract of carriage entered into between plaintiff and defendant which had not been introduced in evidence during the trial of the suit; and (d) because the same is an erroneous construction as a matter of law of the contracts of carriage introduced in evidence by defendant covering the shipments sued on by plaintiff.

The question of whether or not the contracts of carriage entered into between the parties were contracts for through shipments was a question for the jury, as the issues were made by the pleadings. The plaintiff alleged that he made contracts for through shipments direct from Sinton to points of destination, and to this he testified. But the railway introduced in evidence the two contracts or bills of lading, one signed by appellee and the other by his agent or representative, J. T. Patterson. Both of these bills of lading, or contracts, showed the shipments were made from Sinton to Houston, and both contained the above clause limiting the liability of appellant to damages accruing on its own line and to a delivery to the connecting carrier to point of destination.

The evidence, then, was conflicting as to what the contract of carriage was, and it cannot be said that this part of the charge was not material, because appellant had offered evidence tending to show that there was no damage or delay that occurred on its line or up until the cars were delivered to the connecting carrier. So when the court charges that the contracts were for through shipment, such charge is certainly upon a material part of the controversy. A charge which assumes a controverted fact is erroneous. T. & P. Ry. Co. v. Murphy, 46 Tex. 366, 26 Am. Rep. 272; Linney v. Wood, 66 Tex. 22, 17 S. W. 244; H. & T. C. Ry. Co. v. Nixon, 52 Tex. 19; Overall v. Armstrong, 25 S. W. 440; Boaz Co. v. Schneider, 69 Tex. 128, 6 S. W. 402; Lake, Tomb & Co. v. Copeland, 31 Tex. Civ. App. 359, 72 S. W. 99.

That an initial common carrier of an intrastate shipment of goods may limit its liability for damages to those occurring on its own line of railway and in tendering the shipment to a connecting carrier for transportation to point of destination seems to be settled. G., H. & S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S. W. 328; S. A. & A. P. Ry. v. Chittim, 135 S. W. 747; Elder Dempster Co. v. Ry. Co., 105 Tex. 628, 154 S. W. 975; David Hunter v. So....