Southern Kansas Ry. Co. of Texas v. J. W. Burgess Co.

• Decision Date: 18 October 1905
• Citation: 90 S.W. 189
• Parties: SOUTHERN KANSAS RY. CO. OF TEXAS v. J. W. BURGESS CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 189

SOUTHERN KANSAS RY. CO. OF TEXAS v. J. W. BURGESS CO.^*

Court of Civil Appeals of Texas.

October 18, 1905.

On Rehearing, November 29, 1905.

Appeal from District Court, Armstrong County; Ira Webster, Judge.

Action by the J. W. Burgess Company against the Southern Kansas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Terry and Browing, Madden & Trulove, for appellant. Turner & Boyce, for appellee.

FLY, J.

This suit was instituted by appellees to recover damages alleged to have accrued by reason of a refusal on the part of appellant to deliver certain cattle to appellees upon their arrival at Washburn, Tex., their point of destination, and demanding the payment of additional freight in excess of that contracted for with the agent of the Louisville & Nashville Railroad Company, at Hutchinson, Ky.; the freight charges contracted for, from Hutchinson, Ky., to Washburn, Tex., having been prepaid by appellees. A trial by jury resulted in a verdict and judgment for $900 in favor of appellees.

It appears from the facts that in April, 1902, appellees, desiring to ship three car loads of cattle and one car load of emigrant movables from Hutchinson, Ky., to Washburn, Tex., via Kansas City, applied to the agent of the Louisville & Nashville Railroad Company for rates, expressing, at the same time, a desire to prepay the freight charges. The agent immediately conferred with the general freight agent of the company, who, in turn, conferred with the agents of the different connecting lines in regard to the freight rate on the property of appellees, and when appellees presented the property for shipment they paid the amount of freight demanded by the agent of the Louisville & Nashville Railroad Company form Hutchinson to Washburn. Out of this freight the amount fixed by the agent of appellant was allotted to it. It was shown that its railroad is a part of what is known as the "Santa Fé System." No freight rates on goods or cattle from Hutchinson to Washburn had been fixed by the interstate commerce commission. Appellees paid what was demanded of them by the initial carrier, and knew nothing about what the local rates were on freight from Hutchinson to St. Louis or from St. Louis to Washburn. When the cattle and goods arrived at Washburn, appellant refused to deliver them to appellees unless additional freight was paid, and held the property for nearly a day, and it was damaged in the sum found by the jury. It was not shown that the rate on the road from Hutchinson to St. Louis and from that point to Washburn had ever been published as the interstate commission required.

The petition set forth a valid and binding contract on the part of the initial carrier and its connecting lines to convey the property from Hutchinson to point of destination, and it was not incumbent on appellees to allege or prove that the amount paid as freight was the full amount that appellant should have collected under published rates fixed by the interstate commerce commission. That was a matter of defense, to be alleged and proved by appellant, and the court properly overruled the exceptions to the petition on the ground of its failure to allege such matter. This question is fully discussed by the Supreme Court of Tennessee in the case of Railway v. Horne, 59 S. W. 134, and, after stating the terms of the federal statute on the subject of interstate commerce, it is said: "Shippers are not affected by the act until the required publication of rates has been made, and, to bring them within its operation in a given case, the burden is upon the carrier or carriers to show compliance with that condition precedent. If the contest be with regard to the shipment over a single line, the carrier, to have the benefit of the act against its patron, must show publication at each of the stations; and, if it be as to a transportation over connecting lines on joint account, they must show that they have made such publication as the commission directed, or the act will not be applied in their favor. It was the latter burden that rested upon the defendant in this case; the transportation here involved having been made by connecting carriers jointly." See, also, Railway v. Gardner (Tex. Civ. App.) 86 S. W. 793.

The burden was upon appellant to allege and prove that a rate had been fixed by the commission between the points from and to which the freight was shipped, to show that the rate had been published as directed by the commission, and that appellant only demanded the amount fixed by the commission. Allegation and proof of those matters were not essential to a recovery by appellees; all that devolved upon them being to allege and prove that a contract for transportation at a certain price had been made and that they had paid that price. As said by the Court of Civil Appeals of the First District, in the case of Railway v. Redding, 43 S. W. 1061: "By making the contract it necessarily affirmed the right to do so, and certainly, if it can release itself from its undertaking by proof that the contract was illegal, the burden is upon it to furnish such proof, and to show, not simply that the contract may have been unlawful, but that it was necessarily so. In other words, it must exclude the existence of any circumstances or conditions which would have made the contract legitimate." There was a failure in this case upon the part of appellant to show that the rate agreed upon and paid by appellees to the Louisville & Nashville Railroad Company was not the rate promulgated by the commission, which had been duly published as directed by the commission. Appellant was shown to be a part of the Santa Fé System. That road had agreed to the rate fixed by the initial carrier, and, in order to avoid the consequences of its acts in endeavoring to evade its contract of carriage, it must clearly show the facts necessary to prove a violation of the commerce statute in the rate accepted by the initial carrier.

The matter alleged in the supplemental petition in regard to the making of a new contract with the Atchison, Topeka & Santa Fé Railway Company at Kansas City in order to afford the representatives of appellees the right to be transported on the train was a proper averment, and the court did not err in refusing to strike it out nor in permitting proof of the allegations. The allegations did not lay a predicate for proof to vary the terms of the written contract, nor did the evidence of W. W. Burgess tend to vary the terms of the contract. The testimony objected to was that Burgess asked the live stock agent of the Santa Fé at Kansas City if there would be any more to pay after the cattle got to Washburn, and the agent told him everything was all right. How that tended in any way to vary the terms of the written contract does not appear. The testimony rather tended to establish that appellant's agent knew of the original contract and assured appellees that it was all right, and that their property would be promptly delivered to them at Washburn.

There is no merit in the fourteenth assignment. If the allegations were insufficient to show that there was in reality no consideration for the contracts demanded at points along the route from Hutchinson to Washburn, we fail to see how appellant was injured by the refusal of ...