Appeal from District Court, De Witt County; James C. Wilson, Judge.
JAMES, C. J.
This suit was brought by direction of the Railroad Commission of Texas against appellee to recover penalties for alleged violations of article 4574, § 1, Rev. St. 1895 (unjust discrimination), and of the regulations of the commission concerning the compression of cotton at the first compress en route from origin to destination of the
shipment, when same is to be compressed in transit. The cotton in question (100 bales) was shipped by A. Breyer from Yorktown, Tex., on defendant's line, to Bremen, Germany, on a through rate, under export bill of lading, via Houston and Galveston, Tex.; the same to be compressed at Houston. The petition alleged: That Breyer, being desirous of concentrating said 100 bales at Houston for the purpose of marking, classing, grading, weighing, and preparing same for market, and for the purpose of determining its final destination, did not class, grade, or otherwise prepare said cotton for market, otherwise than to mark the same at Yorktown with mark "D. O. R.," and had not while it was at Yorktown determined its final destination. That for the purpose of evading the regulations of the commission requiring said cotton to be compressed at the Cuero Cotton Compress (the first compress in transit), he determined to ship it to Houston, passing said compress, upon pretended export bills of lading, and on September 3, 1900, applied to defendant for and obtained such bills of lading, and thereunder caused it to be carried from Yorktown, through Cuero, and by said compress, to Houston. That when it arrived at Houston it was placed on the platform of the Bayou City Compress, and while still in the hands of defendant, and upon previous understanding with defendant, Breyer's employés went upon said platform, and classed, graded, weighed, and remarked said cotton; changing the original marks, "D. O. R.," on 38 of the bales, and placing other marks thereon; separating such 38 bales from the remainder of the said 100 bales, and replacing or substituting said 38 bales with 38 others taken from cotton which had arrived at said compress from Hallettsville, Tex., under other bills of lading and marks, on which they placed the mark "D. O. D." That the 100 bales thus formed were compressed. That thereafter said 100 bales were delivered by defendant to the Texas & New Orleans Railroad Company as being the identical cotton which it had transported from Yorktown, and were shipped out from Houston under other and different export bills of lading than those issued at Yorktown, and transported outside of the state. That said 100 bales were originally consigned to "F. Kraege, Bremen, Germany, notify A. Breyer," but the cotton thus marked D. O. R., which left Houston, and which purported to be the same cotton, but which was not, was consigned to "E. M. Noble, Bremen, Germany, notify C. A. Gruner & Co." "That the agents of the defendant company, at the time of and before the receipt by them of said 100 bales of cotton delivered to them at Yorktown by Breyer's agent, had notice that it was the intention of Breyer to apply to defendant's agent at Yorktown for export bill of lading for said 100 bales of cotton, to enable him to take the same to Houston for compression, and there to be classed, graded, weighed, and otherwise prepared for market, and there to determine its final destination, and that portions of said cotton would be taken out, and other cotton substituted therefor. That the plan was resorted to by Breyer to enable him to pass the Cuero Compress, and that, with full knowledge of the intention of said Breyer as aforesaid, the defendant issued to him export bills of lading; contriving and intending thereby that the same should be used as a device and cover to evade the compress regulations of the railroad commission. That said regulations required cotton shipped from Yorktown to Houston to be stopped at Cuero for compression; there being a compress at said point in operation at the time, and that being the first compress on defendant's line between Yorktown and Houston. The cotton was shipped on a bill of lading calling for delivery at Bremen, Germany, and was claimed by defendant to be an export shipment, and not subject to the aforesaid regulations. The petition alleges that, notwithstanding the form of the bill of lading, the cotton was a local shipment from Yorktown to Houston, by reason of the fact that it was the intention of the shipper, known to defendant's agent, to stop the cotton at the Bayou City Compress at Houston, there to be compressed, weighed, and classed and graded, and its destination fixed, and to make substitution of the cotton, thereby changing its identity. Defendant answered by voluminous exceptions and pleas to the jurisdiction and exceptions to the merits, which were overruled. Defendant answered further by general denial, and specially denied any notice or knowledge as to Breyer's intentions with regard to the handling of the cotton at the Bayou City Compress at Houston, and denied its power to prevent or in any way interfere with the handling of the cotton at the compress, or its responsibility therefor. The defendant alleged that the shipment was a bona fide export shipment, and, as such, not subject to the compress regulations of the Railroad Commission of Texas." The court instructed the jury to find for defendant.
Appellant makes two assignments of error, which are as follows:
"The court erred in instructing the jury to find a verdict for the defendant, and in refusing to submit to the jury the issues presented by the pleadings and the evidence. If Breyer intended at the time of the shipment of the cotton in question to stop it at the Bayou City Compress, at Houston, there to remark, reweigh, grade, and classify it, and to substitute for the cotton shipped from Yorktown other cotton, so as to make a shipment of one hundred bales of uniform grade before the same was shipped out from Houston, and afterwards did so, then the shipment from Yorktown to Houston was a local shipment, and subject to the compress
regulations of the railroad commission; and, if the defendant's agents knew or had notice at the time of or before the receipt of said cotton for shipment that such was Breyer's intention, they were required to treat the shipment as a local shipment, under the said compress regulations, and to stop it at the Cuero Compress for compression, and this issue should have been submitted to the jury under the evidence introduced, which was sufficient to authorize finding for plaintiff."
"The court erred in refusing to give to the jury the instructions asked by the plaintiff. The evidence raised issues of fact which should have been submitted to the jury with regard to the manner in which the cotton was handled by Breyer at the compress in Houston, the intention of Breyer at the time of the shipment to handle the cotton in this way, and the notice to the defendant's agents at and before the receipt of the cotton for shipment as to Breyer's intentions, which issues of fact, if found for the plaintiff, would have constituted the shipment a local, and not a foreign and interstate, shipment, and would...
