155 S.W. 992 | Tex. App. | 1913
At the time appellant issued its bill of lading, the car of corn was standing on a track owned by the Orange Northwestern Railroad Company, but used jointly by said company and appellant. There was no misrepresentation or concealment on the part of appellee, and the agent of the Orange Northwestern Road, with a knowledge of all the facts, released said car to appellant, and appellant was put in possession of said car, and had such possession at the time it issued its bill of lading for shipment of said corn to McGregor. Appellee went to McGregor for the purpose of receiving and disposing of his corn, and made frequent inquiries of appellant's agent at that place as to why his corn did not arrive; and was never informed as to the cause of such delay until the 20th day of April, 1910, at which time he had said corn reshipped over appellant's road to Houston. There was a judgment in favor of appellee for $400, the amount of which is fully sustained by the evidence.
In order to constitute a delivery, complete control of the goods must be given to the carrier; that is to say, the owner must not retain any manner of control over the goods, and, if any one else retains such control, it must be as the agent of the carrier, and not as the agent of the shipper. Hutchinson on Carriers, §§ 105, 106; Railway Co. v. Insurance Co., 39 S.W. 975. In Railway Co. v. Trawick,
In the instant case, the car of corn was delivered upon a railway track under the control of appellant jointly with the Orange Northwestern Ry. Co. The agent of appellant received said car at said place, and he was authorized so to do, and it was its duty to ship said car, notwithstanding the objections made by the agent of the Orange Northwestern Railway Company. Said company had no right to make such objections; it had delivered the car to the appellee and to the agent of the appellant, and had stated to them that it had no charges against said car, and it was estopped, as against appellant, from claiming any control of said car. We do not think that appellant can be excused from performing its legal duty to ship out said car, merely for the reason that another party objected to its doing so, especially as said party had no legal right to make such objection. The prevention of such shipment by the Orange Northwestern Railway Company was a tort, as appellant must have known; and appellant, by acquiescing therein, and by not notifying appellee of the action of the Orange Northwestern Railway Company, became a cotort-feasor with said Orange Northwestern Railway Company, and became liable to appellee for the damages sustained by him by reason of the delay in such shipment.
This issue was raised by appellant's first assignment of error as to the refusal of the court to peremptorily instruct the jury to return a verdict for appellant, the request *994 for such instruction being based upon the theory that the undisputed evidence showed that the corn was never delivered to appellant. We think that the undisputed evidence shows that the corn was delivered to appellant.
There is no merit in appellant's other assignments of error.
For the reasons herein given, the judgment of the trial court is affirmed.
Affirmed.