Texas Mexican Ry. Co. v. Slaughter

• Decision Date: 13 June 1951
• Docket Number: No. 4815,4815
• Citation: 241 S.W.2d 749
• Parties: TEXAS MEXICAN RY. CO. v. SLAUGHTER.
• Court: Texas Court of Appeals

Page 749

241 S.W.2d 749

TEXAS MEXICAN RY. CO. v. SLAUGHTER.

No. 4815.

Court of Civil Appeals of Texas, El Paso.

June 13, 1951.

Lloyd & Lloyd, Alice, Elmore H. Borchers, Laredo, for appellant.

Butler & Williams, Robstown, for appellee.

McGILL, Justice.

The nature and result of this suit as stated by appellant is conceded to be correct for the purpose of this appeal, by appellee, and we adopt it in part. On March 14, 1950, appellee David M. Slaughter, d/b/a David M. Slaughter Company, filed suit against appellant, The Texas Mexican Railway Company, seeking to recover alleged damages to shipments of one car of tomatoes and three cars of onions. The petition contained four counts, but the case was tried on count I (alleging improper carrying and delay in the shipment of 780 lugs of tomatoes from South Laredo, Texas, to Pittsburgh, Pa., and then diverted by appellee to New York City.) Counts II, III and IV were severed and docketed as a separate suit.

Judgment was rendered on October 23, 1950, for the appellee for $1,965.98, plus interest from December 17, 1947, in the amount of $334.22, a total of $2,300.20, and costs.

Trial was to the court without a jury. At the request of appellant the court filed findings of fact and allowed additional findings of fact. The findings are elaborate. We shall hereafter refer to those deemed material to a proper disposition of this appeal.

Appellant has presented four points. We shall consider them in the order presented. The first point is that the court erred in rendering judgment for appellee by adding the salvage value for which the tomatoes were sold to the full value thereof found by the court.

In disposing of this point we assume for the moment that the court's finding (XI) that had the car in question been properly transported and carried and promptly delivered on the 15th day of December, 1947, the tomatoes would have been of the reasonable fair cash market value of $2,230.00 is supported by the evidence. We also assume that the acceptance of delivery of the car was refused by the consignee and that the destination railroad sold the tomatoes at a salvage price of $239.15 net (additional finding 7); also that this salvage value was retained by the carrier. This assumption is based on the account of sales which was made to the destination carrier. With these assumptions the court did not err in fixing the amount of damages sustained by the plaintiff at $1,965.98. Certainly the carrier could not retain the amount realized by it as the salvage value of the tomatoes and also collect its full amount of freight charges. In Thompson v. Tankersley, Tex.Civ.App., 238 S.W.2d 263, it does not appear whether the $83.25 which was the amount realized as salvage by the operations of the delivering carrier was retained by the carrier or remitted by it to the shipper or consignee. If it was remitted to the consignee or shipper this sum should have been deducted from the market value fixed by the jury. If it was retained by the carrier it should have been deducted from the amount of freight charges and the balance thereof only deducted from the market value found by the jury. We think this item was inadvertently overlooked by the San Antonio Court of Civil Appeals in its holding that in that case the measure of plaintiff's recovery was the reasonable cash market value of the car of tomatoes at the time of their arrival in Baltimore, had they arrived there without material damage (found by the jury to be $2,960) less the appellant's offset for freight charges ($383.25) and that the trial court's judgment for $2,576.75 was for the correct amount. We think that court did not intend to abrogate the rule enunciated by it in Texas Mexican Railway Company v. Slaughter, Tex.Civ.App., 122 S.W.2d 1101, and followed by this court in Texas & N. O. Ry. v. Searcy, Tex.Civ.App., 220 S.W.2d 366 (w.r.n.r.e.). That rule is, loc. cit. 122 S.W.2d 1103(3): 'Where perishable goods arrive at destination in a damaged condition and it is shown that there is no market value for such commodities on the first day they are available for the market and that they are thereafter salvaged and sold as soon as possible, for the best price obtainable in order to minimize damages, the measure of the shipper's damage is the difference between what the market value of the commodities would have been on the date they arrived at destination if they had not been damaged, and the price for which the goods are sold. (Emphasis ours.) Of course the salvage value should not be added to the market value, but should be deducted therefrom. However, where the carrier retains the amount realized for salvage, this sum should be applied to its freight charges, and if less than the amount of such charges it should be deducted therefrom and the balance of such charges only in turn deducted from the market value. This in effect is what the court did in this case in arriving at the figure of $1,965.98 as the damage sustained by plaintiff. We overrule this point.

The second point is that there was no...