| Tex. App. | May 26, 1910
Lead Opinion
— Prior to 1903, Oak Cliff and the City of Dallas, respectively, were stations on the Gulf, C. & S. F. Railway Company’s line of railroad, and each of itself, was an independent municipal corporation. During that year Oak Cliff ceased to exist as an independent corporation, and, as the ninth ward thereof, became a part of the City of Dallas. The territory which constituted Oak Cliff continued, however, to be known, and is yet, commonly known by that name; and to distinguish it from the territory before that time, constituting the City of Dallas, will hereinafter be so designated. The principal portion of the City of Dallas is located east of, the Trinity River. Oak Cliff is located west of said river. The space of about one mile between them is river bottom land, subject to overflow, and therefore, is unoccupied. After Oak Cliff became a part of the City of Dallas the Gulf, C. & S. F. Railway Company did not maintain there (in Oak Cliff) either a freight 'or passenger depot, but did maintain there a siding, which it treated as a “flag” 'or “prepaid” station, and where it continued to deliver freight. The distance between this flag station and said company’s depot, in another part of said City of Dallas, was nearly four miles. '
The City of Dallas is also a station on the Texas & P. Railway Company’s line of railway. Said railway company’s line does not extend to Óak Cliff, but it connects with said Gulf, C. & S. F. Railway Company’s line of railroad to Oak Cliff.
The Owens Lumber Company was in business at Oak Cliff, where its yard was located, about two miles from the court-house in Dallas, and "about three blocks north of the Gulf, C. & S. F. Railway Company’s flag station in Oak Cliff. At and during about 18 years before the times hereinafter mentioned, the lumber company had been receiving shipments of lumber at said station.
After Stating the Case as above — Appellant insists, and we agree, that on the ease as made by the record it was not liable to the penalty adjudged against it.
The recovery for the penalty was on the ground that appellant had failed, after transporting the lumber to Dallas, to deliver same to the Gulf, C. & S. F. Railway Company, as its connecting line, for transportation to Oak Cliff.
Subdivision 2 of art. 4574, Chapter 13, Sayles’ Statutes, declares that “every railroad which shall, under such regulations as may be prescribed by the commission, fail or refuse to transport and deliver without delay or discrimination, any passengers, tonnage or cars, loaded or empty, destined to any point on or over the line of any connecting line of railroad, shall be deemed guilty of unjust discrimination.” Orders of the Railroad Commission, effective January 27, 1896, and March 24, 1897 (circulars 199 and 399), declared that a railroad company, '“having received from a shipper a loaded car destined to a point on a connecting line, the company so receiving such loaded car shall forward and haul same over its line to its junction with the next connecting line, to which it shall, at such junction, deliver same for further transportation.” Art. 4575, Chapter 13, Sayles’ Statutes, declares, that “in case any railroad subject to this chapter shall do, cause to be done, or permit to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter or thing herein required to be done by it, such railroad shall be liable to the person or persons, firm or corporation injured thereby, for the damages sustained in consequence of such violation; and in case such railroad company shall be guilty of extortion or discrimination as by this chapter defined, then, in addition to such damages, such railroad shall pay to the person, firm or corporation injured thereby, a
Whether appellant was liable to the penalty adjudged against it or not, depended upon whether it had violated the statute and orders of the Railroad Commission to which we have just referred. And whether it had violated such statute and orders or not depended, first, upon whether the car of lumber was destined to a “point” on one of its “connecting lines;” and, second, upon whether, if the car of lumber was destined to such a point, it had transported and delivered same to such connecting line for further transportation.
The trial court was of the opinion, and iso instructed the jury, that for the purposes of the shipment Oak Cliff was a station of the Gulf, C. & S. P. Railway, and “was not a part of Dallas or Dallas Station.”
Was Oak Cliff, within the meaning of the statute and said orders of the Railroad Commission, a “point” distinct from Dallas on the line of the Gulf, C. & S. F. Railway, or was it only as a part of Dallas, a “point” on said line of railway? It is clear that the City of Dallas was such a point. The City of Dallas included Oak Cliff. Within the meaning of said statute and orders, could there be a point within a point? We think not. The contention seems to have been that the Railroad Commission had made a certain rate on shipments of lumber to Oak Cliff, and a different rate on such shipments to other parts of Dallas, and thereby, as to such shipments, had segregated the Oak Cliff territory from Dallas. The order of the commission referred to as accomplishing this, became effective March 5, 1906 (circular 2417). Section 2 of the order declared that “rates between points on and east of a line drawn from Red River via the Chicago, Rock Island and Gulf Railroad to Bridgeport, and from Bridgeport, by a straight line to Mineral Wells, thence to Cisco, thence to Brownwood, thence to Llano, thence to San Antonio and from San Antonio via San Antonio and Aransas Pass Railway to Corpus Christi, ¡shall not exceed 18% cents per 100 pounds, except to points on the San Antonio & Aransas Pass Railway south of Beeville to Corpus Christi, inclusive, the rate shall not exceed 20 cents per 100 pounds;” and section 3 of said order declared that “rates between points in that portion of Texas on and east of the Missouri, Kansas & Texas Railway of Texas, from Red River via Denison to Sherman and via the Houston & Texas Central Railroad from Sherman to Dallas, and also on and north of the Texas & Pacific Railway from Dallas to Wascom, inclusive, shall not exceed 17 cents per 100 pounds.”
It will be noted that section 3 of the order of the commission just referred to, made the 17 cents rate it fixed applicable to points on as well as east of the Houston & T. C. Railway, and to points on as well as north of the Texas & P. Railway. Dallas was a “point” on the line of each of said railways, and the 17 cents rate, therefore, clearly applied to it. As a part of Dallas, Oak Cliff necessarily, also was on said lines of railway, and as clearly, therefore, we think, the 17 cents rate applied to it. It would be as reasonable to hold that said rate
The fact that the tracks of appellant’s line of railway connected with the tracks of the G-ulf, C. & S. F. Railway Company’s line of railway in Dallas, and that the latter’s line of railway extended to, while the farmer’s line of railway did not extend to Oak Cliff, did not, as to freight destined to Dallas, which appellant had contracted to deliver in Oak Cliff, make the Gulf, C. & S. F. Railway a “connecting line” as to such freight. “Connecting lines” of railway, as defined by the Railroad Commission (circulars 199 and 399, before referred to), “are two or more lines connecting with each other by crossing each other’s tracks or otherwise, and forming a continuous rail roxxte between the initial and terminal points of shipment; and a connection, or connecting line is any one of said two or more lines.”_ If, -as we have con-
But we think there was no error in the judgment in so far as it was in appellee’s favor for the value of the lumber, less the sum appellant was entitled to demand and receive for transporting same to Dallas. Appellant’s undertaking not only was to transport the lumber to Dallas, but also to deliver it to the consignee in a specified part of Dallas, to wit, Oak Cliff. A tender of the lumber to the consignee at its station in Dallas, was not a compliance with that part of its undertaking which required it to deliver same to the consignee in Oak Cliff. Therefore, when it failed to make such delivery it breached its contract, and when it sold the lumber for charges claimed to be due thereon, it was guilty of a conversion thereof, and became liable to appellee for its value.
The judgment will be so reformed as to adjudge a recovery in favor of appellee against appellant for the sum of $637.22 — (the value of the lumber, less the cost of transporting same to Dallas) — interest thereon, at the rate of six percent per annum, from October 29, 1909— (the date of the judgment of the court below) — rand costs accruing in said court. As so reformed, the judgment will be affirmed. The costs of the appeal will be adjudged against appellee.
Rehearing
ON MOTION FOE A REHEARING BY APPELLANT.
Appellant has misconstrued the holding of this court, in concluding that the effect thereof was to determine that it had, for the lawful rate to Dallas, bound itself by its contract with appellees to transport and deliver the lumber to a specified point in Oak Cliff. The contract did not so stipulate and we did not so construe it. We agree that such an undertaking on the part of appellant would have been unlawful, because it would have operated'as a discrimination in favor of appellees against shippers, whose consignments of lumber to Dallas had to be transferred at their own or their consignee’s expense, from appel
The motion for a rehearing, therefore, is overruled.
Rehearing
ON MOTION FOR A REHEARING BY APPELLEES.
Appellees complain that language used in the opinion conveys “the idea that the station and agent were removed from Oak Cliff at the time Oak Cliff became a part of the municipality of Dallas,” whereas, they say, the “real facts” are “that the station and agent were abandoned long prior to the time that Oak Cliff became a part of the political corporation of the City of Dallas, and that no change was made after Oak Cliff did become a part of Dallas, and that the flag station" or prepay station was separately maintained thereafter until the carload of lumber in question reached Dallas.” The record shows the facts to have been substantially as appellees state them, to wit: that in 1891 or 1892 the Gulf, C. & S. F. Railway Company, using the language of witnesses, “established a depot at Oak Cliff,” and “abolished it soon thereafter;” that Oak Cliff afterwards, but at a time not shown, was “made a prepay station,” and continued to be such a station until December 31, 1907; and that during the time it was a prepay station, •a station building was not maintained there, and that the facilities for handling freight there “consisted of a switch track” only.
Appellees contend that they were entitled to a judgment against appellant for the sum of $637.22 and interest, at the rate of six percent from October 29, 1909, and complain that this court, in reforming the judgment of the court below and rendering a judgment here, rendered same for a less sum. The judgment rendered by this court was, and is, for the sum of $637.22 and interest thereon, at the rate of six percent per annum from October 29, 1909. The complaint made by appellees that it is otherwise, evidently is due to an oversight, for neither the language of the opinion of this court nor that of the judgment
The conclusion reached by us that appellees were not entitled to recover the penalty sued for, we still think, is the proper one to be drawn from the facts shown by the record.
The motion for a rehearing is overruled.
Reformed and rendered
Writ of error refused.