58 Tex. 134 | Tex. | 1882
That part of the charge of the court regarding the liability of the appellee Scott is objected to by appellant as erroneous. The evidence disclosed by the record unmistakably shows that after appellant had given notice to the station agent at Marlin of the stoppage m transitu, that the La Prelies made a fraudulent assignment of the bill of lading to Scott, and at the same time gave him a written order on the station agent at Hearne for the goods. Armed with these, Scott intercepted the shipment at Hearne, obtained possession of the goods, effaced from the boxes the name of La Prelle & Bro., and inserted that of J. L. Scott & Co. (a bogus firm). He then shipped, by the same line, the goods to the bogus firm at Marlin, taking a bill of lading in that name. When the shipment arrived at Marlin it was delivered to a drayman on his presenting to the agent the J. L. Scott & Go. bill of lading, and was immediately delivered to the insolvent firm of La Prelle & Bro., and thus defeated appellant in getting the rightful possession of his goods. .
There is no pretense that Scott did not fully understand and comprehend the object and purpose of the fraudulent assignment of the ¡bill of lading. It is shown by his intercepting and reshipment and delivery of the goods to La Prelle & Bro. On the contrary, by his own evidence it is made to appear that the whole thing had been pre-arranged between him and the La Prelies for the object and with the purpose of defeating the appellant in getting the rightful possession of his own property. It is said by some of the witnesses that he was the attorney for and representing the La Prelles.
Having assumed the apparent ownership of the goods, for the purpose and with the intention of consummating the fraud upon appellant, he will not be heard to deny his liability to appellant for the loss sustained by reason of his wrongful acts, under the privileges of an attorney at law, 'for such acts are entirely foreign to the duties of an attorney; neither will he be permitted, under such circumstances, to shield himself from liability on the ground that he
The court also instructed the jury as follows: “ If you find for the defendant Scott under the preceding instruction, then, to hold the railroad company liable, the evidence must show that the general freight agent was notified not to deliver the goods to the purchaser, or that the agent from whom Scott obtained possession was so notified. Eotice to"the agent of the company at Marlin alone, would not be sufficient, under these circumstances, to charge the company, and you should find for both defendants.”
This charge is also objected to as erroneous. There is no evidence in the record from which it might be inferred that the company had any such employee or officer as a “"general freight agent;” and it is not perceived upon what ground the court was authorized to take judicial knowledge of the existence of such an agent, and the scope of his duties and power. Certainly the statute does not name such agent, nor does it define his duties, and there is no general rule of law that requires that notices of this kind must be given to such an agent, so as to bind the company.
When the station agent was informed not to deliver the goods to La Prelle & Bro., he replied that the appellant would be protected in the shipment, thus holding himself out as an agent of the company with regard to freights, and in that department of its business; he says that his duties as station agent are confined to that station, and matters there. This shows that he was the agent of the company in regard to freights at that station. This record also shows that Marlin is the county seat of Falls county, being the place where this case was tried. So, in the absence of evidence showing that the company had another agent at that point, this station agent must be regarded as the agent representing the company in that county. Under the provisions of our statute, service of citation of a suit pending in the courts of that county upon him, constitutes service upon the company. B. S., art. 1223.
As service of citation upon him is service upon the company in the most important suit that might be instituted in the courts of that county, it is not easily perceived why notice to him of stoppage in transitu should not be held sufficient notice to the company when the consignment is made to that station or the shipment made from it.
The fact that in the transaction of the business of a railroad com
Here the station agent was, to all appearances, held out to the public as the representative of the company at that point, in regard to freights either shipped to or from that station. And it would seem to follow that a notice to him of a stoppage in transitu of goods in transit to that point, upon the soundest principles of law and justice ought to be considered as notice to the company.
It is well known that railroad companies operate their own telegraph lines in connection with the business of their road. This is common knowledge, and part of the history of the country, and authorized by the charters granted to railroad companies. This evidences the fact that they have the means of ready communication with all the stations along the road; they are supposed to be informed of the movements of their various trains, and the names, stations and duties of their agents. This being the case, it would be more consistent with right and reason to require the station agent at the point of destination, when informed of the stoppage in transitu, to give notice to the proper agents along the line of shipment of that fact, than to place upon the owner such a duty, as, from the very nature of the case, it would be next to impossible for him to accomplish.
We conclude that the charge in this respect was erroneous.
The evidence disclosed by the record, in regard to the delivery of the goods to Scott at Hearne, the remarking and shipping the same to Marlin, their delivery by the agent, notwithstanding the notice to him from the owner, when he was suspicious that they were the Poole goods, outside of the last question considered, should have been submitted to the jury on a question of good or bad faith upon the part of the agents of the company in that respect.
For the errors indicated, we are of the opinion that the judgment ought to be reversed and the cause remanded.
Upon the question as to the proper party upon whom notice should be served, to be effective as a stoppage in transitu, the following is the general rule: “In order to make the notice effectual, it must be given either to the person who has the immediate custody of the goods, or to- the principal whose servant has such custody, at such time and under such circumstances that he may, with reasonable diligence, prevent the delivery of the goods to the purchaser or consignee.” Edwards on Bailments (2d. ed.), 487; Chitty on Carriers (with American notes), 163; Whitehead v. Anderson, 9 M. & W., 533; Mottram v. Heyer, 5 Denio, 629; Bell v. Moss, 5 Whart., 189.
I have very serious doubt whether notice served, as in this case, on a mere local agent at the point of destination, is effective as such, unless the goods should come into his possession in the regular line of transportation, either- as originally consigned, or should thus come when the bill of lading has been fraudulently changed, and of which fraud the agent had either notice in fact, or of such circumstances as would be equivalent to notice. Otherwise the carrier might, without fault or negligence, be held responsible for the value of goods of which notice of stoppage in transitu had been given to one who had no power to interfere with or control their destination, and in regard to which the carrier, therefore, had no notice. The testimony in this case shows that the duties of the local agent to whom notice was given, “ were confined to the business in and about the station only. That he had no control over anything except such as are under his immediate control.”
The testimony, however, further shows — and it is upon this ground that I place my concurrence with the result reached, so far as the judgment against the company is concerned —that the goods, after they had been by the grossest fraud anticipated on the way, and the marks changed, and a new bill of lading taken in the name of a fictitious firm, subsequently came into the possession of this agent under such circumstances as that he himself testified that his suspicions were aroused that they were the same goods. Nevertheless, without notice to the agents of the company, and who were almost at the door of the station, and without taking a bond of indemnity, or other precaution whatever, to protect the rights of the consignors, he permitted the goods to be carried into the possession of the original consignees. Reveesed AND BEMANBED.
