St. Louis, I. M. & S. Ry. Co. v. West Bros.

• Decision Date: 11 June 1913
• Citation: 159 S.W. 142
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. WEST BROS. et al.
• Court: Texas Court of Appeals

159 S.W. 142

ST. LOUIS, I. M. & S. RY. CO. v. WEST BROS. et al.

Court of Civil Appeals of Texas. San Antonio.

June 11, 1913.

On Motion for Rehearing June 28, 1913.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by West Bros. against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff against defendant named, it appeals. Reversed and remanded.

See, also, 152 S. W. 181.

Guinn & McNeill, of San Antonio, Baker, Botts, Parker & Garwood, of Houston, G. B. Fenley, of Uvalde, and W. B. Teagarden, of San Antonio, for appellant. Martin & Martin and L. Old, all of Uvalde, Wilson, Dabney & King, of Houston, and W. L. Hall, of Dallas, for appellees.

FLY, C. J.

This cause was instituted by West Bros. to recover damages arising from delay in the shipment of certain cattle from Uvalde, Tex., to the National Stock Yards, Ill., the defendants in the trial court being the Galveston, Harrisburg & San Antonio Railway Company, International & Great Northern Railroad Company, Texas & Pacific Railway Company, St. Louis, Iron Mountain & Southern Railway Company, and T. J. Freeman, receiver of the International & Great Northern Railroad Company. It was alleged in the second amended petition, upon which the cause was tried, that, West Bros. desiring that their 277 cattle be shipped from Uvalde, Tex., to National Stock Yards, Ill., the Galveston, Harrisburg & San Antonio Railway Company, being the initial carrier, made a verbal contract with an agent of appellant, by which he agreed, in consideration of the routing of the cattle so that they would pass over the Galveston, Harrisburg & San Antonio Railway Company's line to San Antonio; thence over the International & Great Northern Railroad line to Longview; thence over the line of the Texas & Pacific Railway Company to Texarkana; thence over the lines of appellant to the National Stock Yards, Ill.—that appellant would transport the cattle in such time that they would be unloaded and fed once in transit, and with such dispatch that they would be delivered at point of destination in time to be sold on Tuesday, June 6, 1911. The following allegation is also found in the petition: "Plaintiff says that at the time that they made the said contract, as aforesaid, he informed the said agent of the defendant St. Louis, Iron Mountain & Southern Railroad Company, D. C. Smith, that plaintiff desired the said cattle transported to destination on one feed, for the reason that cattle shipped from Uvalde, Tex., to National Stock Yards, Ill., and fed only once en route would take a heavy fill, and would weigh more than if fed and watered more than once en route, that said cattle if fed and watered more than once would not take any fill at destination, and would weigh much less than if fed only once, and would weigh in the neighborhood of 50 pounds less per head, if they were fed and watered twice in transit, than if watered once, and that Tuesday of each week was the best market day at destination; and that if plaintiffs' cattle did not arrive at said market on Tuesday in time for market that they would bring plaintiff much less than if they had to be sold on any other day, and that he wished them to go through by said day, Tuesday, June 6th, in time to be sold, so that they might be on said market on said day, and also that they would not be delayed en route, and thereby lose in flesh and become of poor appearance; and plaintiff says that the said contract was so made between plaintiff and the said defendant St. Louis, Iron Mountain & Southern Railroad Company by and through its live stock agent, as aforesaid, was made with full knowledge of all the facts, and of the damage that plaintiff would suffer, as aforesaid, by reason of a failure to perform said contract to place said cattle on market on said day, Tuesday, June 6, 1911, and feeding them more than once en route." Appellant sought to remove the cause to the "District Court of the United States for the Western District of Texas, at Del Rio," alleging diverse citizenship, and that the matter in controversy exceeded the sum of $3,000, and also filed its bond for removal. The petition for removal was overruled, and upon a trial of the cause by a jury a verdict was returned against appellant for $1,740.74, and in favor of the other railway companies, and from the judgment thereon rendered this appeal has been perfected.

While the original petition was in effect, and had not been set aside by amendments, appellant sought a removal to the federal court, and after the second amended petition had been filed a second motion to remove was made. The first and second assignments of error, respectively, complain of the refusal to remove under each motion. The first application for removal was on the ground of diverse citizenship and severableness of the claim against appellant from those against the other railways, and the claim against the initial carrier under the Carmack amendment. In the second motion there is no distinct allegation that the claim against appellant is severable from that of the other defendants. The only mention made of that matter is that the second amended original petition stated "more distinctly a separable cause of action or controversy than was set out in their pleadings when said first application for removal was refused by this court." The merit, if any, in the application for removal must stand or fall on the allegations of the second application for removal, under the allegations of the second amended original petition. When the original petition was abandoned and amended, pleadings were filed, and appellant made a second application thereunder, it must be considered in the light of the second amended pleading. The action of the court under the original petition cannot avail appellant after a second application was filed by it under other pleadings. It may be said, however, that under the allegations of the original petition the cause against appellant was not severable from that against the other defendants. Nor do we think the legal part of the action against appellant, as set forth in the second amended petition, was separable from that against the other railway companies.

The oral contract alleged in the amended petition was one made for the regular joint rates, but one which gave the shippers an advantage over other shippers. It was an agreement to handle the cattle so as to get them into the market by a certain time, in a way that was not used in regard to other cattle, and the action was one for a breach of that oral contract, which was one, not to carry the cattle within a reasonable time and deliver them at the point of destination, but it was a contract to carry them within a particular time, and to feed in a particular way, for a particular purpose. This is an interstate shipment, and in regard to such shipments the decisions of the Supreme Court of the United States must have a potent, if not controlling, influence.

In a case decided by the Supreme Court, in 1911 (Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 164, 32 Sup. Ct. 648, 650 ), in which the facts are quite similar to those in this case, the statute, as to discrimination, of February 19, 1903, known as the Elkins Act (U. S. Comp. St. Supp. 1911, p. 1309), was copied, and it was held: "The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is...