Texarkana & Ft. S. Ry. Co. v. Neches Iron Works

• Decision Date: 23 October 1909
• Citation: 122 S.W. 64
• Parties: TEXARKANA & FT. S. RY. CO. v. NECHES IRON WORKS et al.
• Court: Texas Court of Appeals

122 S.W. 64

TEXARKANA & FT. S. RY. CO. v. NECHES IRON WORKS et al.

Court of Civil Appeals of Texas.

October 23, 1909.

Appeal from Jefferson County Court; Jas. A. Harrison, Judge.

Suit by the Neches Iron Works against the Texarkana & Ft. Smith Railway Company and another. There was a judgment for plaintiff against the defendant named, and it appeals. Affirmed in part, and reversed in part.

Hiram Glass and H. M. Whitaker, for appellant. Terry, Cavin & Mills and F. J. & R. C. Duff, for appellee G. C. & S. F. Ry. Co. W. W. Cruse, for appellee Neches Iron Works.

PLEASANTS, C. J.

This suit was brought by the Neches Iron Works against the appellant and the Gulf, Colorado & Santa Fé Railway Company to recover the value of a car load of coke alleged to have been converted by the defendants, and to recover special damages alleged to have been sustained by the plaintiff by reason of said conversion. The cause of action is thus stated in the petition: "That heretofore, to wit, on or about September 3, 1907, defendants owned, operated, and controlled each its certain line of railroad, extending into and about the city of Beaumont, Jefferson county, Tex., and was then and there and still is engaged in the business of running and operating a line of railroad and transporting freight on and over their said lines of road as common carriers for hire, and that on or about September 6, 1907, in consideration of the sum of $88 then and there paid defendants by plaintiff, which was freight charges demanded by the defendants upon one car of Milwaukee Salvoy coke, at which time the defendants promised and agreed to carry and deliver to the plaintiff promptly at its machine shops, in the city of Beaumont, Tex., its place of business, said one car of Milwaukee Salvoy coke, which was then and there in their possession in their yards in the city of Beaumont, Tex., having been shipped over their said line of railroad, and was then and there the property of this plaintiff, and was of the reasonable value of $199.04, and that at the time of the payment of said freight charges, as aforesaid, plaintiff told and informed defendants that its supply of coke was running short, and it was in immediate need of the delivery of this car of coke, and unless same was delivered to them promptly, which it requested to be done, that its supply would run out, and they would be delayed in their work, and would cause them damage, and that repeatedly thereafter, for the next 10 or 15 days, plaintiff did call defendants up over the phone and requested and insisted upon the immediate delivery of the said car of coke to them, each time informing them of the importance of having the same delivered at once, stating to them, unless they received same at once, they would have to close the shops, and would be damaged, and that they would hold them for it. But that afterwards, on or about September 6, 1907, defendants knowingly, unlawfully, and willfully took possession of said property, and knowingly and unlawfully converted the same to their own use and benefit. Plaintiff further charges that it was some 20 days after the payment of said freight charges before it learned that its said car of coke had been used, and that defendant could not deliver same, but that during all this time which intervened defendants negligently and fraudulently misinformed plaintiff and kept it believing that its car of coke would be delivered by telling it that they would trace it up and have it put over to him, when as a matter of fact it had been appropriated and could not be delivered." Other allegations of the petition claim that the special damages sustained by the plaintiff by reason of loss of business caused by the failure of the defendants to deliver the coke amounted to the sum of $250.

The defendants answered by general demurrer and general denial, and specially excepted to the petition on the ground that the allegations of special damages were insufficient, in that there is no allegation that the defendants at the time they accepted the shipment of the coke had notice that such special damage would likely accrue if there should be a...