Southern Pac. Ry. Co. v. Maddox

• Decision Date: 03 December 1889
• Citation: 12 S.W. 815
• Parties: SOUTHERN PAC. RY. CO. <I>et al.</I> <I>v.</I> MADDOX <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 815

SOUTHERN PAC. RY. CO. et al.v.

MADDOX et al.

Supreme Court of Texas.

December 3, 1889.

Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

This was an action brought by R. E. Maddox & Co. against the Southern Pacific Railway Company, John C. Brown, receiver of the Texas & Pacific Railway Company, and that company, to recover the value of mules shipped from Fort Worth, Tex., to Los Angeles, Cal. Judgment for plaintiffs, and defendants appeal.

Finch & Thompson, for appellants. Hunter, Stewart & Dunklen, for appellees.

STAYTON, C. J.

This action was brought by appellees to recover the value of mules shipped from Fort Worth, Tex., to Los Angeles, Cal., which were killed by the collision of trains after they passed into the possession of the Southern Pacific Company. The action was brought against the company, John C. Brown, then receiver of the Texas & Pacific Railway Company, and against that corporation. The Texas & Pacific Railway Company, it appearing from the petition that its railway was operated by the receiver appointed by a circuit court of the United States, questioned appellees' right to maintain the action against it; but its exceptions were overruled. On final trial, however, there was a judgment in its favor, and it therefore becomes unnecessary to consider questions affecting it.

The action was brought on November 7, 1887, and the injury occurred during September preceding. The receiver, by exception, questioned the right of the court below to entertain the action against him on the ground that he could not be sued in any other court than that by which he was appointed. This defense was correctly overruled. The petition alleged that both companies were railway corporations; that Brown was the receiver of the one; and that there was an agreement between the defendants that the Southern Pacific Company would receive from the other and the receiver all goods, live-stock, and other merchandise transported over the Texas & Pacific Railway from Fort Worth, Tex., at El Paso, Tex., and transport the same to Los Angeles, Cal., at a fixed rate per car-load, agreed upon, the money received for such service to be divided between them. It further alleges that all the defendants received the mules at Fort Worth, Tex., and agreed to transport them to Los Angeles, Cal., for which plaintiffs agreed to pay the sum of $210, the customary price, but that the defendants failed to comply with their contract, and that, through the negligence of the defendants and their employes, the mules were killed by the collision of trains. The petition did not allege that the contract was in writing. The receiver alleged that the shipment was not a through shipment, and that, if so originally intended, it was rescinded by a contract made at El Paso between the plaintiffs and the Southern Pacific Company, whereby his contract terminated, the shipper receiving the mules and delivering them to the Southern Pacific Company, from whom plaintiffs received another shipping contract, under which the mules were lost. He further pleaded that the mules were received by him at Fort Worth, and shipped under a special written contract, by the terms of which plaintiff agreed not to claim over $100 per head for the mules in the event they were lost or damaged; that it was agreed this should be the full extent of his liability; and that the consideration for this contract was a reduction in rate of freight given to plaintiffs. The contract was made an exhibit to the answer, and contained many provisions not now necessary to mention, some of which are such as a common carrier cannot enforce to relieve himself from liability in case of loss. The shipping contract executed at Fort Worth was a through contract, binding the carrier to transport the mules from that place to Los Angeles, Cal., and contained the following provision: "The said Southern Pacific Railway Company, as aforesaid, will not assume any liability over the actual value, but in no case exceeding one hundred dollars per head on horses and valuable livestock, except by special agreement." This is contained in what is styled, "Rules and Regulations for the Transportation of Live-Stock," made a part of the contract, which also contains the further provision that "the said second party further agrees, for the consideration aforesaid, that, in case of total loss of any of his said stock from any cause for which the said party will be liable to pay for the same, the actual cash value at the time and place of shipment, but in no case to exceed one hundred dollars per head, shall be taken and deemed as a full compensation therefor, and, in case of injury or partial loss, the amount of damages claimed shall not exceed the same proportion." The Southern Pacific Company denied that the contract made at Fort Worth was a through contract, and claimed that it received the mules at El Paso under a contract there made between itself and the plaintiffs, but admitted that the mules were killed while in transit on its road between El Paso and Los Angeles. It further pleaded that, under the contract made with it, appellees agreed, in case of loss of the mules, they would not claim more than $65 per head for them, which was the full amount of liability to be assumed by it; but it also set up the contract made at Fort Worth, and under that claimed exemption from liability for more than $100 per head. The contract made at El Paso was made an exhibit to the answer, and contained the following provision: "And the said party of the second part agrees that, in case any injury to or loss of such stock shall occur for which the said Southern Pacific Company is legally liable, that the amount to be by him claimed for each animal so lost or injured shall not exceed the sum of sixty-five dollars." This contract was signed by the agent of the company, but not by the shippers, or any one of them; but the name of the employe of appellees, who was traveling with the stock, seems to have been signed to the paper, probably for the purpose of identifying him as the person entitled to passage in charge of the stock. Appellees denied under oath the execution of the contract alleged to have been made at El Paso; and there was no evidence to show that it was executed by them, or any one acting under their authority; but the person who was traveling in charge of the mules seems to admit that he signed it, but states that he did it without authority, after being told by the agent of the company that he had to do so in order to ship the mules through and get a pass for himself.

On the trial a witness stated that the mules were killed in a collision of the cars in which they were with a passenger train, and that the engineer was drunk. It is urged that the admission of this evidence was improper; but it was surely competent to prove the destruction of the mules, and there was no impropriety in showing how they were killed. Evidence tending to show that the agent traveling in charge of the mules had no authority to execute the contract made at El Paso was admissible under the sworn plea; and, as the contract executed at Fort Worth entitled appellees, at least against the receiver, to through transportation of the mules, all of which was known to the...