214 S.W. 833 | Tex. App. | 1919
Lead Opinion
When all the facts found by the trial court are kept in mind, we think it sufficiently appears that the judgment is erroneous so far as it is against the Chicago Great Western Railway Company. The theory upon which the trial court held that company to be liable was that it "became an absolute insurer of the arrival of the corn in good condition, by reason of its negligence and wrongful act in making the diversion of the shipment without noting same upon the bill of lading." It may be conceded, without deciding the question, that the court's conclusion was correct if he meant that the Chicago Great Western Railway Company, because of its default in the particular specified, became an insurer of the arrival of the corn at Sherman in good condition; still judgment should not have been rendered against that company, for the court expressly found that the evidence was "insufficient to show whether the corn reached Sherman, Tex., in good condition or not" But if the trial court meant that the Chicago Great Western Railway Company by changing the routing of the corn became an insurer of its arrival in good condition at Plano, Tex., we think the conclusion was plainly erroneous; for that company never undertook to transport the corn further than Sherman, Tex. We have found nothing in. the record which supports the contention of appellee Puterbaugh that said railway company was liable to him for injury to the corn after it reached Sherman, and after the Houston Texas Central Railway Company, in compliance with the instruction in the bill of lading, had notified the Walker Grain Company of its arrival there. After such notice was given, it can hardly be contended that the failure of the Chicago Great Western Railway Company to note the change of routing in the bill of lading was a proximate cause of injury thereafter accruing to the corn because of delay in transporting it to Plano. For that delay, it seems from the findings, the Missouri, Kansas Texas Railway Company of Texas was responsible; for the Walker Grain Company, having, as stated above, been itself promptly notified by the Houston Texas Central Railway Company of the arrival of the corn at Sherman, shortly thereafter notified that company (the Missouri, Kansas Texas Railway Company of Texas) that the corn was at Sherman, and requested it to take up with the Houston Texas Central Railway Company the matter of having it transported to Plano. Why the Missouri, Kansas Texas Railway Company did not promptly comply with the request of the Walker Grain Company does not appear from anything we find in the record. It was due to its failure to so comply therewith, it seems, that the corn remained stored in the car at Sherman so long, and its being so stored, it reasonably appears from the findings, was the cause of the injury it sustained. Such failure and the consequent delay of about one month in the transportation of the corn from Sherman to the nearby town of Plano it seems to us was plainly a breach of the undertaking to transport the corn to said town and there deliver same to its owner within a reasonable time, evidenced by the bill of lading issued to the Walker Grain Company by the agent at Ft. Worth of said Missouri, Kansas Texas Railway Company of Texas. Why, then, should not said railway company have been held to be liable to the owner of the corn for the consequences to him of such breach? The reason advanced by said railway company in its brief is that it was not its undertaking. In support of that contention it insists that its said agent acted without the scope of his authority as such when he issued the bill of lading, because it had not then acquired possession of the corn. It is not necessary to determine whether the contention would be tenable or not (said railway company never having acquired possession of the property) it the suit was one for damages for a conversion of the corn; for, plainly, it was not that kind of a suit. It was, instead, a suit for damages for delay in transporting the corn, to Plano, whereby, it was claimed, it was injured. It may be conceded, without so determining, that the agent at Ft. Worth of said railway company exceeded his authority as, such when he issued the bill of lading purporting to bind it to transport over its own and connecting lines from Ft. Worth to Plano property it had not then and never afterward acquired possession of; still the fact remains, it reasonably appears from the findings, that said railway company adopted, by attempting to perform, the undertaking by its said agent on its behalf; for the corn was transported to Plano, and the cost in freight charges for carrying it there was demanded of and paid by the milling company. Now, if said railway company had a right to repudiate the contract of its said agent in its *836 behalf, it did not have a right, affirming same and undertaking performance thereof, to thereafter claim exemption from liability to the owner of the corn for the consequences to him of its negligence in such performance.
Perhaps in fairness it should be added here that the statement that the carriage of the corn to Plano was in performance of the undertaking evidenced by said bill of lading is not based on a specific finding by the court to that effect, but on the fact that the carriage of the corn to that town is not otherwise accounted for in the findings the court made. So far as anything in the record shows to the contrary, it was not pretended at the trial that any one else than said railway company ever undertook to carry the corn, or have same carried, to Plano. Therefore we think a fair, if not a necessary, inference from the findings is that the corn was carried to Plano at the instance of said railway company in an attempt by it to comply with the undertaking evidenced by said bill of lading. So construing the findings, there can be no doubt, we think, that the conclusion of the trial court based thereon, to wit, that said railway company was not entitled to be heard to deny liability for injury to the corn, was warranted. 2 C.J. pp. 489, 490, 492, 493, et seq.; 21 R.C.L. pp. 927, 932.
The judgment will be affirmed so far as it is against the Missouri, Kansas Texas Railway Company of Texas, and so far as it is in favor of parties specified in the statement above; and it will be reversed so far as it is against the Chicago Great Western Railway Company, and judgment will be here rendered that appellee Puterbaugh take nothing as against it.
On Motion of Missouri, K. T. Ry. Co. of Texas for Rehearing.
We are not sure, after a re-examination of the record in connection with the motion, that the contention of the Missouri, Kansas Texas Railway Company of Texas that neither the pleading nor the evidence warranted an affirmance of the judgment against it on the ground stated in the opinion should not be sustained; but as we have concluded that, if it should be, the judgment against said appellant nevertheless should be affirmed on another ground, the motion will be overruled. When the record was first before us we were inclined to think the case was within a rule, recognized by many courts, which denies to the agent of a carrier authority to issue a bill of lading covering goods the carrier has not actually received. 10 C.J. 197. Further consideration of the record has convinced us that that rule should not be applied to the case. It was, we think, within the scope of the authority of the Missouri, Kansas Texas Railway Company of Texas' agent to issue a bill of lading, binding it to take up the corn from its connecting carrier and continue the carriage thereof from Sherman (its destination under the bill of lading issued by the Chicago Great Western Railway Company) to Plano. We think it will not be denied that had there been no change made in the routing of the corn, and had it been carried over the Missouri, Kansas Texas Railway Company's line of railway from Kansas City to the point where it connects with the Missouri, Kansas Texas Railway Company of Texas, the latter would have been bound by the undertaking on its behalf evidenced by the bill of lading in question. Railway Co. v. Grain Co., 206 S.W. 126. If that is so, then the bill of lading was not within the rule of law referred to, and if the Missouri, Kansas Texas Railway Company of Texas was not liable as determined by the trial court it was not because its Ft. Worth agent was without power to bind it by such a contract, but for some other reason. The only other reason suggested by the findings of fact made by the trial court (there is no statement of facts with the record) is that the bill of lading in question was issued as the result of a mistake on the part of said agent of the Missouri, Kansas Texas Railway Company of Texas at Ft. Worth, and on the part of Mr. Walker of the Walker Grain Company, or as to the routing of the corn from Kansas City. To have entitled the Missouri, Kansas Texas Railway Company of Texas to relief against the contract on that ground it must have set up such mistake in its pleadings (2 Abb. Trial Brief, p. 1496; 1 Abb. Trial Brief, p. 596), and it did not.
Dissenting Opinion
No complaint has been made by the appellee of the judgment rendered in this court upon the original hearing, and the only questions to be now considered are those presented in the motion for a rehearing by the Missouri Kansas Texas Railway Company of Texas, who, for convenience, will be hereinafter referred to as the appellant.
The material facts have been very clearly stated by Chief Justice WILLSON in his original opinion. I differ with my Associates only as to the legal conclusions that should be drawn from those facts. Since it has been determined that neither the pleadings of the appellee nor the facts as found by the court warrant the conclusion that the conduct of the agent of the appellant had been ratified by an effort on the part of the appellant to transport the car of corn to Plano, I am of the opinion that the judgment as to that company should be reversed. As we now view the record, the liability of the appellant *837 depends upon its being estopped to repudiate the action of its agent in issuing the supplemental bill of lading referred to at the instance of the Walker Grain Company. We know judicially that the Missouri, Kansas Texas Railway Company and the Missouri Kansas Texas Railway Company of Texas, the appellant in this suit, are two separate and distinct railway corporations, the latter operating in Texas, and the former outside of this state; that they are parts of a great railway system engaged in interstate commerce, and connect with each other at Red River, a few miles north of the city of Sherman. We also know judicially that the Houston Texas Central Railway Company operates a line of railroad through Plano, but that Plano is not touched by the appellant's line.
After alleging the issuance of the original bill of lading by the Chicago Great Western Railway Company routing the car of corn involved in this suit over the Missouri, Kansas Texas Railway system, the appellee pleads as follows:
"That the defendant Missouri, Kansas Texas Railway Company of Texas accepted the terms and conditions of said contract so made by the defendant Walker Grain Company with this plaintiff, and agreed to participate therein by transporting over its line of road the said car of corn from Red river on the northern boundary line of Texas to Sherman, Tex., and thence on to Plano, Tex., over the line of the defendant Houston Texas Central Railroad Company; that the defendant Missouri, Kansas Texas Railway Company of Texas accepted and retained the said bill of lading so delivered to it by the defendant Walker Grain Company, and did issue and deliver to defendant Walker Grain Company another bill of lading in lieu thereof and as an amendment thereto, by which the defendant Missouri, Kansas Texas Railway Company of Texas acknowledged that the said car of corn was in its possession and under its control at the time, and by which bill of lading it agreed to transport the said car of corn from its northern terminus, Red river, to Sherman, Tex., and thence on to Piano, Tex., and there deliver it to the defendant Walker Grain Company, or its assigns, under the said bill of lading. That the said supplemental bill of lading so issued by the defendant Missouri, Kansas Texas Railway Company of Texas was likewise a negotiable instrument, and the same was by the defendant Missouri, Kansas Texas Railway Company of Texas placed in the hands of the defendant Walker Grain Company and made subject to being negotiated by it."
It is not alleged that the car of corn was ever in the possession of this appellant, and the court finds as a fact that it was not. As ground for recovering against the appellant the appellee alleges as follows:
"That by reason of the defendant Missouri, Kansas Texas Railway Company of Texas having issued its supplemental bill of lading covering said car of corn, and having delivered the said supplemental bill of lading, which was a negotiable instrument, to the Walker Grain Company, the said defendant Missouri, Kansas Texas Railway Company of Texas did thereby assist and enable the defendant Walker Grain Company to collect from this plaintiff the price of said corn, to wit, the sum of $974.83, and did enable the defendant Houston Texas Central Railroad Company to collect from this plaintiff said freight amounting to $197.42; and the said defendant Missouri, Kansas Texas Railway Company of Texas is therefore estopped to now assert that it never received the said car of corn, and that it never had the same in its possession, and that by reason of its failure to deliver the said car of corn according to the terms of its said supplemental bill of lading to this plaintiff it thereby became and is now liable to this plaintiff for the amount of its loss and damage, to wit, $1,172.25."
It is thus made to appear that the only ground for holding the appellant liable in this suit is that it is estopped to now repudiate the action of its agent in issuing the supplemental bill of lading and deny that it ever had possession of the car of corn.
It is clear that if this supplemental bill of lading had never been issued, the only material facts being the same, there could be no pretense for holding the appellant liable in this suit. It had nothing to do with the issuance of the original bill of lading by the Chicago
Great Western Railroad Company, or with the change in the routing thereafter made, and therefore owed no duty toward the shipment, contractual or otherwise. Hunter v. Southern Pine Lumber Co.,
It has been held by one of our Courts of Civil Appeals that a defense of this character may be interposed on a general denial. Cohen v. M., K. T. Ry. Co., supra. If the appellant may show that it did not receive the goods and that the bill of lading was issued without authority, the entire instrument is a nullity, and cannot be invoked for the purpose of holding the appellant liable for the failure to transport the goods to Plano. It is no argument to say that appellant's agent did have authority to make a contract binding his principal to receive the goods when tendered by its connecting carrier and transport them to Plano, for that contingency never happened, and that portion of the contract, if valid, never took effect. I am therefore of the opinion that the judgment in this case as to the appellant should be reversed and rendered.