St. Louis Southwestern Ry. Co. v. Cox

• Citation: 221 S.W. 1043
• Decision Date: 22 April 1920
• Docket Number: (No. 1060.)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. COX.
• Court: Court of Appeals of Texas

221 S.W. 1043

ST. LOUIS SOUTHWESTERN RY. CO. v. COX.

(No. 1060.)

Court of Civil Appeals of Texas. El Paso.

April 22, 1920.

Rehearing Denied May 13, 1920.

Appeal from Navarro County Court; H. E. Traylor, Judge.

Action by J. A. Cox against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Richard Mays, of Corsicana, for appellant.

Dexter Hamilton, of Corsicana, for appellee.

HIGGINS, J.

Appellee, Cox, sued the appellant to recover damages occasioned by loss of and injury to certain household goods, furniture, etc., shipped in 1917 from Tahoka, Tex., to Dawson, Tex. The initial carrier was the Panhandle & Santa Fé Railway Company. The appellant was the terminal carrier, and received the shipment at Dallas, Tex., from the Gulf, Colorado & Santa Fé Railway Company. There was a verdict and judgment in favor of the plaintiff, from which the defendant appeals.

Opinion.

The proposition underlying the fifth, sixth, and eighth assignments is that the correct measure of damage in this case is the sum of $10 per hundredweight of the shipment, and that the charge is erroneous in failing to give this measure. This contention is predicated upon the theory that the shipment was made at a reduced rate, in consideration of a declared valuation of $10 per hundredweight, and that the written contract of carriage limited recovery to that amount.

In the absence of proof to the contrary, it will be presumed that the loss was caused by the negligence of the carriers, and since this is an intrastate shipment the provisions of article 708, R. S., apply. Under this statute provisions in a contract of carriage which would relieve the carrier from the consequences of such negligence are invalid, Railway Co. v. Ball, 80 Tex. 602, 16 S. W. 441.

Under a number of assignments and in varying forms the contention is made that this appellant cannot be held liable because the loss and damage to the shipment occurred before it came into its possession. Appellant was the terminal carrier. The evidence discloses that it received the shipment at Dallas, Tex., from the Gulf, Colorado & Santa Fé Railway Company, and upon its receipt by appellant the shipment was in a badly damaged condition. For the purpose of fixing upon appellant liability for the loss and damage occurring prior to its receipt of the shipment appellee invokes the provisions of articles 731 and 732, R. S. These statutory provisions have application in an intrastate shipment "on a contract for through carriage recognized, acquiesced in, or acted upon, by such carriers. * * *" The appellee's petition is insufficient to impose upon appellant as the terminal carrier any liability under these statutes for loss and damage accruing before appellant received the shipment, for the reason that it is not alleged that the contract was recognized, acquiesced in, or acted upon, by appellant. In order to fix a liability under these statutory provisions, the essential facts must be pleaded.

Conceding that the evidence brings the case within the purview of these statutes it avails the appellee nothing. "Whatever might be the effect of the evidence, under proper allegations, it cannot support the judgment of the court upon an issue not made by the pleadings." Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567. See, also, Tinsley v. Penniman, 83 Tex. 54, 18 S. W. 718; Lumber Co. v. Lee, 7 Tex. Civ. App. 522, 27 S. W. 161; Railway Co. v. Johnson, 34 S. W. 186; Montgomery v. McCaskill, 189 S. W. 797.

For the reason indicated the cause will be reversed. Since the case must be retried, no opinion is expressed upon the sufficiency of the evidence to bring the case within the purview of the statute. We merely refer to the decisions which hold that, in order to fix liability under the statute upon a terminal carrier for loss or damage occurring before the shipment is received by that carrier, a contract for through carriage must be shown which was recognized,...