Thompson v. San Antonio & A. P. Ry. Co.

• Decision Date: 18 September 1895
• Citation: 32 S.W. 427
• Parties: THOMPSON v. SAN ANTONIO & A. P. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

32 S.W. 427

THOMPSON v. SAN ANTONIO & A. P. RY. CO.¹

Court of Civil Appeals of Texas.

September 18, 1895.

Appeal from district court, Bee county; S. F. Grimes, Judge.

Action by J. C. Thompson against the San Antonio & Aransas Pass Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

J. C. Crisp, Dugat & Mimms, and Clark & Fuller, for appellant. Proctors, for appellee.

JAMES, C. J.

The district court sustained certain special exceptions to the petition in this case. There appears to be no contention on this appeal that it did not state a cause of action apart from the effect claimed for the act of 1891, creating the railroad commission. The substance of the petition is that in the early part of 1893 plaintiff purposed planting a crop of watermelons for market, when he and the railway company, the latter knowing his purpose, entered into a contract by which the latter agreed, upon the maturing of the crop in the summer of that year, to furnish cars and transport the same at the rate of 30 cents per 100 pounds to all Texas points, 40 cents to all points outside of Texas south of the Missouri river, and 50 cents to points in Colorado, and to furnish plaintiff or some one for him free transportation with each shipment, etc.; that plaintiff, relying on this contract, planted and raised a crop of watermelons; and that defendant wholly failed to carry out its contract when they were ready and tendered for shipment, by reason of which he suffered the damages for which he sued.

The exceptions sustained were as follows: "(1) Special Exception: That the petition shows a suit on a contract made while the railway commission of this state was in force, by which defendant was required to transport certain produce at fixed rates, and does not allege that any of said rates were those established by the railway commission, or that said contract was authorized or ratified by said railway commission. (2) Special exception: That the petition sets up a contract made in February, 1893, whereby defendant agreed to furnish, at a time then several months distant, cars for transportation of watermelons to points in Texas at a fixed rate; and defendant says it had no capacity to enter into any such contract, because the power to fix rates was expressly conferred upon the railway commission of Texas, then in the full exercise of its powers, and also because the exercise of any such power by defendant was penalized by the railway commission act in regard to further objects of public policy as to the regulation of such common carriers. (3) Special exception: That, said contract as to shipments at fixed rates to points in Texas...