Texas & N. O. R. Co. v. Gray

• Court: Texas Court of Appeals
• Writing for the Court: Reese
• Citation: Texas & N. O. R. Co. v. Gray, 99 S.W. 1125, 45 Tex. Civ. App. 208 (Tex. App. 1907)
• Decision Date: 05 February 1907
• Parties: TEXAS & N. O. R. CO. v. GRAY.

99 S.W. 1125

TEXAS & N. O. R. CO. v. GRAY.

Court of Civil Appeals of Texas.

February 5, 1907.

Appeal from Orange County Court; W. J. Wingate, Judge.

Action by Park Gray against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Baker, Botts, Parker & Garwood and L. F. Chester, for appellant. Holland & Holland, for appellee.

REESE, J.

Park Gray sued the Texas & New Orleans Railroad Company in the county court to recover damages to certain horses and mules shipped by him from Vinita, Ind. T., to Orange, Tex., over the lines of the St. Louis & San Francisco Railway, the initial carrier, and connecting carriers. Under the shipment the defendant company received the car containing the stock from the Kansas City Southern Railway at Beaumont for carriage to Orange. The stock was alleged to have been damaged en route by delay, rough handling, and failure to properly rest, feed, and water them, due to the negligence of defendant company. Defendant answered by general demurrer and general denial, and specially denied that there was any injury to the stock while in its care and possession, alleging that the stock was only in its possession about five hours, and was only carried 23 miles, being the distance from Beaumont to Orange. It was further alleged that by the contract of shipment entered into between the initial carrier, the St. Louis & San Francisco Railway Company, and plaintiff, the liability of each carrier was specially limited to its own line. By supplemental petition plaintiff made the following plea: "He says that, if the property for whose damage this suit is brought was at any time during its transportation in the possession of any other road than defendant's, then that a written contract of through shipment was made between plaintiff and the agent of the initial carrier, who was also the agent of defendant, and defendant was and is a connecting carrier with such initial company, and had an arrangement by which each acted as the agent of the other in making contracts of transportation, and acted together in transporting such property, together with all other intermediate lines, all of whom were connecting carriers and so acted together, and defendant is therefore liable, and of this he puts himself upon the court." Upon trial with a jury plaintiff had judgment for $650, from which defendant appeals.

The first, second, and third assignments of error attack the judgment of the court on the ground that the evidence fails to show any liability on the part of appellant. The following are the facts as established by the practically undisputed evidence: The live stock in question, consisting of 18 mules and 6 horses, was delivered in good condition to the St. Louis & San Francisco Railway Company at Vinita, Ind. T., on December 20, 1904, for transportation by that line and its connecting carriers to Orange, Tex. One C. W. Thomas, appellee's agent, accompanied the stock, for the purpose of looking after them, from Vinita to Orange. They were delivered by the Kansas City Southern Railway, a connecting carrier, to appellant at Beaumont, Tex., at 11 o'clock a. m. on December 25th, and left Beaumont on appellant's line at 1:30 p. m. on the same day and were received at Orange at 3 o'clock p. m. on the same day in a damaged condition. By the terms of the shipping contract or bill of lading issued by the St. Louis & San Francisco Railway Company, which was introduced in evidence by appellee, it was expressly provided that the initial carrier and each connecting carrier should be responsible only for loss or damage occurring on its own road. The contract provided for carriage by the initial carrier to Neosho, Mo., and delivery at that point "to a carrier whose line may form a part of the route to Orange." This being an interstate shipment, this contract limiting the liability of each carrier to its own line was a valid contract. McCarn v. Railway, 84 Tex. 353, 19 S. W. 547, 16 L. R. A. 39, 31 Am. St. Rep. 51.

Appellee, however, seeks to avoid the force of this limitation in the contract by the fact that the truth of the plea set out in full in the first part...