Strickland Transp. Co. v. Johnston

• Decision Date: 26 February 1951
• Docket Number: No. 6139,6139
• Citation: 238 S.W.2d 717
• Parties: STRICKLAND TRANSP. CO., Inc. v. JOHNSTON et al.
• Court: Texas Court of Appeals

Page 717

238 S.W.2d 717

STRICKLAND TRANSP. CO., Inc. v. JOHNSTON et al.

No. 6139.

Court of Civil Appeals of Texas, Amarillo.

Feb. 26, 1951.

Rehearing Denied March 19, 1951.

Currie & Muse, Dallas, and Hazlewood & Richards, Amarillo, for appellant.

S. E. Fish, and Simpson, Clayton & Fullingim, all of Amarillo, for appellees.

MARTIN, Justice.

Appellee, W. D. Johnston, purchased a refrigerator in Albuquerque, New Mexico, and the same was shipped by common carrier through the State of Texas and to Birmingham, Alabama. The carriers participating in the transportation of the refrigerator were: Appellee, Hill Lines, Inc., the initial carrier, Strickland Transportation Co., Inc., the intermediate carrier, and B. & M. Express, the delivering carrier. The refrigerator was damaged in transit in the amount of $450. Appellee, W. D. Johnston, by his amended petition joined appellee, Hill Lines, Inc., and appellant, Strickland Transportation Co., Inc., as defendants in his cause for damage. Hill Lines, Inc., upon being sued by Johnston, had originally joined Strickland Transportation Co., Inc., and asked judgment over against it but upon Strickland filing a plea of privilege had dismissed its action against Strickland. But, upon Johnston joining Strickland Transportation Co., Inc., as a defendant in his amended petition, Hill Lines, Inc., again sought judgment over against Strickland Transportation Co., Inc. Strickland Transportation Co., Inc., filed a plea of res adjudicata to Hill's pleading asking judgment over against it. Upon the filing of this plea, Hill Lines, Inc., by its second amended answer abandoned any effort to secure judgment over against appellant Strickland.

The cause was tried before the court, without the intervention of a jury, and the court granted appellee, W. D. Johnston, a judgment jointly and severally against appellee Hill Lines, Inc., and appellant, Strickland Transportation Co., Inc. The court also granted Hill Lines, Inc., a judgment over against Strickland Transportation Co., Inc., for the amount of the damage. Strickland Transportation Co., Inc., perfected an appeal based upon three points of error. Only appellant's points 1 and 2 will be discussed as a ruling of these two points effects a determination of this appeal.

Appellant's point 1 asserts that as there was no evidence to show that the damage occurred on the line of Strickland Transportation Co., Inc., the trial court erred in so finding and in awarding any judgment against the appellant.

Appellants point 1 shows reversible error. As the refrigerator moved in interstate commerce, the rights and liabilities of the parties are determined by the Carmack Amendment to the Interstate Commerce Act, Sec. 20(11), Title 49 U.S.C.A. Panhandle & S. F. Ry. Co. v. Montgomery, Tex.Civ.App., 140 S.W.2d 241; Commodity Credit Corporation v. Norton, 3 Cir., 167 F.2d 161. Liability of the initial carrier, Hill Lines, Inc., is fixed by the provisions of this Act and judgment was properly rendered in favor of Johnston as against said appellee, Hill Lines, Inc. Mexican Light & Power Co. v. Texas Mexican Railway Co., 331 U.S. 731, 67 S.Ct. 1440, 91 L.Ed. 1779. B. & M. Express, the delivering carrier, though not joined in this cause, having delivered the refrigerator in damaged condition is subject to the presumption that the damage occurred on its line. Chicago & Northwestern Railway Co. v. C. C. Whitnack Produce Co., 258 U.S....