Texas & P. Ry. Co. v. Leslie

• Decision Date: 23 June 1910
• Citation: 131 S.W. 824
• Parties: TEXAS & P. RY. CO. et al. v. LESLIE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

131 S.W. 824

TEXAS & P. RY. CO. et al. v. LESLIE et al.^†

Court of Civil Appeals of Texas.

June 23, 1910.

On Rehearing, October 21, 1910.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

Action by A. Y. Leslie and another against the Texas & Pacific Railway Company and others. From a judgment in favor of plaintiffs, defendant Texas & Pacific Railway Company and another appeal. Modified.

On May 19, 1907, appellees delivered to the Texas & Pacific Railway Company 445 head of cattle at Pecos, Tex., intending them to be shipped to themselves at Stratford, Tex. There were three routes by which the cattle could be shipped from Pecos to Stratford over the Texas & Pacific Railway. One of the routes is via Abilene and the Wichita Valley and Ft. Worth & Denver Railways, and another is via Ft. Worth and the Ft. Worth & Denver Railway, and the other is via El Paso, thence through New Mexico via El Paso & Southwestern Railway and the Chicago, Rock Island & Gulf Railway, to Stratford, Tex. Appellees, knowing of the three routes, sought information of the local agent of the Texas & Pacific Railway Company at Pecos as to time of making the trip, changes of cars, and the rates of freight charges of the several routes; and the agent informed the appellees that the route each via Abilene and Ft. Worth was $54 per car, and that the freight rate over the route via El Paso was the same rate as that over the other routes, and that the latter route would make better time, and there was only one change. Acting on this information of the agent, the appellees then directed the routing of the shipment over the interstate route via El Paso. The Texas & Pacific Railway Company then received the cattle and delivered a bill of lading to appellees agreeing to transport the cattle, consisting of 14 cars, as routed by appellees, "from Pecos, Tex., station to El Paso, Tex., station, consigned to Leslie & Wharton, Stratford, Tex., at the rate of tariff per car." At Stratford, Tex., the point of destination, the local agent of the Chicago, Rock Island & Gulf Railway Company demanded and collected the freight tariff charges on the shipment at the rate of $89 per car, and over protest was paid by appellees. It was conclusively proved that the freight tariffs issued by the Texas & Pacific Railway Company and filed with the Interstate Commerce Commission and in effect at the time of shipment was a rate of $25 per car from Pecos to El Paso on interstate shipments of live stock, and that the interstate rate in effect from El Paso to Stratford over the El Paso & Southwestern and Rock Island, issued and filed with the Interstate Commerce Commission, was $64 per car, making the sum of the two $89. There was no through tariff rate over the interstate route authorized. The evidence was uncontradicted that the freight rate from Pecos to Stratford over the other routes, which were entirely intrastate, then in force and authorized by the Railway Commission of Texas, was a through rate of $54 per car. Upon arrival of the cattle at El Paso, two of the steers were fatally injured and died, caused by injuries received en route. The Texas & Pacific Railway Company delivered the cattle at El Paso to the El Paso & Southwestern Railway Company, and the latter received and negligently kept the same in its pens there for four days before shipping out. There was proof that the cattle were damaged in shipment and by the delay, and that additional expense and loss occurred to appellees by reason thereof. All issues of fact were decided by the jury against the contention of the appellants, and there is evidence to support the same; and we here adopt the findings of the jury.

Appellees instituted the suit to recover of appellants the value of the two dead steers, and deterioration in value and injury to the cattle shipped resulting from alleged negligent handling and delay en route, and to recover of the Texas & Pacific Railway Company the amount of the freight charges collected above $54 per car as damages for alleged misrepresentation and misinformation as to freight tariff charges of the routing. In accordance with the verdict of the jury, a judgment was rendered in favor of appellees against the Texas & Pacific Railway Company for $540, covering $490, the difference between the through intrastate freight rate and the sum of the interstate rates filed with the Interstate Commerce Commission, and $50, the value of the two steers which died in transit to El Paso; and in favor of appellees against the El Paso & Southwestern Railway Company for $1,330 damages resulting from injury in delay in shipping from El Paso; and in favor of the Chicago, Rock Island & Gulf Railway Company against appellees.

W. L. Hall and Spoonts, Thompson & Barwise, for appellant Texas & P. Ry. Co. Lassiter & Harrison, for appellant El Paso & S. W. Ry. Co. A. J. Clendenen, for appellees.

LEVY, J. (after stating the facts as above).

The assignments of the appellant El Paso & Southwestern Railway Company are first taken up. The first assignment, complaining that the court's charge is erroneous as assuming certain issuable facts as proven, should be, we think, overruled, as not fairly subject to the objection urged.

The second, fourth, fifth, and seventh assignments present the same question, and can be here considered together. Appellants offered to show that it was usual to receive notice several days ahead for cars for shipments originating on its line, and that it was the general custom of such shippers to give 10 to 20 days' prior notice, which evidence was on objection excluded by the court, and this is complained of in the assignments. A special charge was asked, and refused by the court, to the effect that if, at the time the cattle in question were tendered, there were previous orders on file with appellant which consumed the supply of cars on hand, and appellant exercised reasonable care under the circumstances to furnish cars without delay, it would not be liable for any delay. In this connection, it was proved in the case that nearly all the stock shipments moved in April, May, and June, and that there was a great demand for cars at that time, and that this condition exists every year at that time, and that it is usual at this place. As against the delay in shipping out the cattle in question after receiving same in its pens from the Texas & Pacific Railway Company, as said by appellant in its brief, "its sole defense was that it had not been notified of the shipment in time to collect this number of cars, and that several orders were...