Texas & N. O. R. Co. v. J. Kahn & Co.
| Decision Date | 31 October 1941 |
| Docket Number | No. 2176.,2176. |
| Citation | 156 S.W.2d 292 |
| Court | Texas Court of Appeals |
| Parties | TEXAS & N. O. R. CO. v. J. KAHN & CO. |
Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.
Action by J. Kahn & Company against the Texas & New Orleans Railroad Company to recover damages for loss of cotton destroyed by fire. Judgment for plaintiff, and defendant appeals.
Affirmed.
Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
Thompson, Knight, Harris, Wright & Weisberg, of Dallas, for appellee.
J. Kahn & Company instituted this suit against the Texas & New Orleans Railroad Company for the recovery of damages for the loss of cotton destroyed by fire on the platform of the Kaufman Compress Company at Kaufman, Texas. The defendant answered by general demurrer, general denial and specially alleged that at the time of the fire the cotton was in the possession and control of the owner or shipper through its agent, the compress company. The trial resulted in an instructed verdict and judgment in favor of the plaintiff against the Railroad Company. That company appeals, contending that the verdict and judgment is erroneous, and that a verdict should have been instructed in its own favor; that if the undisputed evidence did not warrant a verdict in its favor, then an issue of fact was raised requiring the court to submit the case to the jury. The parties will be referred to as in the trial court.
The defendant Railroad Company contends there is no liability on its part because the cotton had not been delivered to it so as to render it liable as a common carrier. It contends that the cotton (1) was in possession of the compress at the time it was destroyed by fire; (2) that the compress company had been selected by the shipper as its agent; (3) that the cotton was to be compressed, marked, counted and otherwise serviced by the compress for and on behalf of the shipper at whose expense and direction such services were to be rendered. That the cotton had not been so prepared for transportation and accepted by the defendant at the time of the fire.
In brief, the theory of the plaintiff's suit is that the cotton at the time it burned was in the possession of the compress company as the agent of defendant. The defendant asserts that at the time of the fire the compress was holding and handling the cotton as the agent of plaintiff or independent instrumentality.
Since an instructed verdict was given in favor of the plaintiff our question is, Does the evidence conclusively establish the correctness of the plaintiff's theory? We proceed upon the theory that when delivery has not been made to the carrier, but, on the contrary, the evidence shows that the goods remained in the possession of the shipper or his agent after the signing and passing of the bills of lading, the carrier is not liable as such under the bill. The issuance of the bills of lading was prima facie proof that the cotton was delivered and accepted by defendant for immediate shipment. Missouri Pac. R. Co. v. McFadden, 154 U. S. 155, 14 S.Ct. 990, 38 L.Ed. 944; Gulf, C. & S. F. R. Co. v. Lowery, Tex.Civ. App., 155 S.W. 992; Brass v. Texarkana & Ft. S. Ry. Co., 110 Tex. 281, 218 S.W. 1040; Texarkana & Ft. S. R. Co. v. Brass, Tex.Com.App., 260 S.W. 828.
While it is undisputed that the bills of lading were issued and delivered by the defendant and the draft attached for the purchase price was forwarded through the banks and paid by the plaintiff, nevertheless additional facts and circumstances (now to be considered) are presented by this record.
The defendant (Railroad Company) introduced its Tariff No. 71-C, consisting of rules promulgated by the Railroad Commission for the government of carriers. One of its provisions is: "Item No. 280— Through shipments on which compression in transit and consolidation is desired.
"On shipments of cotton moving under through bills of lading from origin to destination which shipper desires compressed in transit and consolidated with other shipments at the compress points in order to obtain the benefit of through carload rate from point of origin the following rule will apply: (a) Standard compression must take place at the first standard compress and high density compression must take place at the first high density compress in either direction from the point of origin and will be at the expense of the shipper."
Paragraph (j) of said regulation is: "At points at which a cotton compress is in operation, cotton may be tendered to the carrier for compression and consolidation thereat under the provisions of these compression and consolidation rules; when satisfactory arrangements have been made between the shipper and the carrier, cotton may be tendered to the carrier upon compress platform, and it shall be the duty of the carrier to receipt for such cotton in the same manner and on the same terms as it would receive and receipt for cotton if tendered at its own depot platform at compress or non-compress points."
The Tariff further provides:
Pursuant to above regulations the bills of lading issued in the instant case contain these provisions: "This shipment may be held at Kaufman for not to exceed 20 days from the date of B/L for compression and consolidation under provisions of Item 280 Tariff 71-C, I.C.C. 382."
Pertaining to duties and liabilities of railroads as common carriers, Art. 886, R.C.S. 1925 reads:
Article 6409, R.C.S.1925, reads: "* * * and in case of failure to do so [forwarding goods in order of receipt] they shall be liable for all loss occurring while the goods remain, and for all damage occasioned or in anywise resulting from delay; provided that the trip or voyage shall be considered as having commenced from the time of the signing of the bill of lading * * *."
Article 6393, id.: "Railroad companies shall erect at each depot, station, or place established by such company for the reception and delivery of freight, suitable buildings or enclosures to protect produce, goods, wares, and merchandise and freight of every description from damage by exposure to weather, stock or otherwise."
After a careful study of this record, we are of the opinion that the undisputed facts as a whole may be stated thus:
(1) The defendant Railroad Company issued its bills of lading acknowledging receipt of the cotton in question and agreed to transport the same to Houston subject only to the right to hold the shipment not to exceed 20 days for compression and consolidation pursuant to tariff provisions.
(2) At the same time it knew that under the rules and regulations of the Railroad Commission the shipper of the cotton had a legal right to tender the cotton to it as a carrier on the compress platform.
(3) At that time the Railroad also knew that it was its duty as a carrier, when satisfactory arrangements had been made with the shipper, to receive and receipt for such cotton at the compress in the same manner as if it had been tendered to it on its own platform.
(4) The Railroad Company knew that its issuance of the bills of lading would reflect acceptance of the cotton by it as a carrier.
(5) When it received the cotton and issued its bills of lading it knew that the cotton was not ready for shipment and would have to be compressed before actual shipment began as evidenced by its notation on the bills of lading that the cotton might be held for not to exceed 20 days for the purpose of compression and consolidation.
(6) The Railroad Company knew that the compress company on its (Railroad's) behalf would identify, count, weigh, and load the cotton into the car and had previously so done for an indefinite length of time.
(7) In the instant case, and at the time of the fire, the cotton in question was so identified and was located upon the platform of the compress company, and was covered at the time of its destruction by shipper's order bill of lading issued by defendant.
(8) The defendant Railroad maintained no appropriate platform for accepting cotton at Kaufman, but relied on the compress company to receive cotton for it and after receipt to identify, weigh, count and load the bales for and on behalf of the Railroad.
(9) After the issuance of bills of lading covering the cotton on the compress platform, a shipper of the cotton could not interfere with it or change its course or quantity in any way without surrendering the original bills of lading and obtaining new authorization from the Railroad.
(10) There was no dispute as to the value of the cotton, nor that it was destroyed while lying upon the compress platform waiting for or in process of being compressed.
(11) At time of fire, Kahn & Company was owner of the cotton, having purchased same on outbound bills of lading and in reliance thereon.
As to the Railroad's practice or course of dealing in accepting compress...
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Fletcher L. Yarbrough & Co. v. Texas & N. O. Ry. Co., 14135
...for damages sustained by the shipment. Citing in support of the conclusion the Arthur Case, supra. In Texas & New Orleans Ry. Co. v. J. Kahn Co., Tex.Civ.App., 156 S.W.2d 292, writ ref., the railroad company contended that cotton located on a compress platform and under bill of lading issue......