Schloss v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 22 June 1893
• Citation: 22 S.W. 1014
• Parties: SCHLOSS v. ATCHISON, T. & S. F. RY. CO.
• Court: Texas Supreme Court

22 S.W. 1014

SCHLOSS v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of Texas.

June 22, 1893.

Case certified from court of civil appeals, third supreme judicial district.

Action by A. Schloss against the Atchison, Topeka & Santa Fe Railway Company to recover damages or penalty provided by act May 6, 1882, (Sayles' Civil St. art. 4258a, § 3,) for detention of goods by defendant after tender of freight charges. From a judgment sustaining a demurrer to the petition, plaintiff appealed to the court of civil appeals, and the latter has certified certain questions to the supreme court for decision.

Merchant, Teal & Wilcox, for appellant. J. P. Hague and Waters Davis, for appellee.

BROWN, J.

The appellant sued under the act of the legislature approved May 6, 1882, (article 4258a, § 3, Sayles' Civil St.,) to recover an amount equal to the freight charges for each of four days that it was alleged that the freight was detained after the charges had been tendered. The petition alleged that the freight was shipped over appellee's line from St. Louis to El Paso, and that the freight charges amounted to the sum of $217.80. It was not alleged that the amount of the charges was shown by the bill of lading, but it was alleged that after the goods arrived the defendant's agent notified appellant of their arrival, and of the amount of freight charges due as shown by the expense account. It is claimed that the expense account became a part of the bill of lading. The district court sustained a demurrer to the petition. The appellant declined to amend, and appealed.

The court of civil appeals has certified to this court for decision the following questions: First. When the owner of goods shipped to their destination by a railroad tenders to it the amount of the freight charges, but such amount is not shown by the bill of lading, is a refusal to deliver the goods a violation of the statute, article 4258a, § 3, Sayles' Civil St.? Second. Was the expense account furnished by the company to plaintiff after the arrival of the goods at their destination, showing the amount of the freight charges due, a part of the bill of lading within the meaning of the statute? The answer to the first question depends upon the answer given to the second, and we will answer the second first.

Answer to second question: Article 280, Sayles' Civil St., provides that "common carriers are required, when they receive goods for transportation, to give to the shipper, when it is demanded, a bill of lading or memorandum in writing, stating the quantity, character, order, and condition of the goods." This, under our statute, constitutes a bill of lading. It is a contract entered into between the parties at the time the goods are delivered, and is equally binding upon both parties. It may be true, in practice, as claimed, that in fact the railroads dictate the terms, but in law this is the contract when made. The expense account is a bill of particulars of services rendered and expenses paid under the contract, made by the railroad company alone. The shipper has no part in making it, and is not bound by it. If the bill of lading contained data or referred to some other instrument from which data could be obtained by which the amount due could be determined, it would no doubt be sufficient. This was the case in Railway Co. v. Roberts, (Tex. App.) 22 S. W. Rep. 184. Under the facts stated, the expense account was not a part of the bill of lading.

Answer to first question: The act of May 6, 1882, contains three sections (articles 4258a, § 1, 4258a, § 2, and 4258a, § 3, Sayles' Civil St.,) which must be considered together in order to determine the character of the act. The first section, in substance, declares that it shall be unlawful for any railway company, its officers, agents, and employes, to demand or receive a greater sum for transporting freight than is specified in the bill of lading. The second section, in substance, declares it to be the duty of railroad companies, their officers and agents, to deliver to the consignee freights transported by it upon the payment of the amount of charges due as shown in the bill of lading. The third section, under which this suit is brought, provides, in substance, that if any railroad company shall, upon the payment or tender of the freight charges "due as shown by the...