Texas & Pacific Railway Co. v. Leslie , 62 Tex. Civ. App. 380 ( 1910 )

LEVY, Associate Justice.

On May 19, 1907, appellees delivered to the Texas & Pacific Bailway Company 445 head of cattle at Pecos, Texas, intending them to be shipped to themselves at Stratford, Texas. There were three routes by which the cattle could be shipped from Pecos to Stratford over the Texas & Pacific Bailway. One of the routes is via Abilene and the Wichita Valley and Fort Worth & Denver Eailways, and another is via Fort Worth and the Fort Worth & Denver Eailway, and the other is via El Paso, thence through Hew Mexico via El Paso & Southwestern Railway and the Chicago, Rock Island & Gulf Railway to Stratford, Texas. Appellees, knowing of the three routes, sought information of the local agent of the Texas & Pacific Railway Company at Pecos as to time of making the trip-, changes of cars and the rates of freight charges of the several routes; and the agent informed the appellees that the route each via Abilene and Fort Worth was $54 per ear, and that the freight rate over the route via El Paso was the same rate as that over the other routes, and that tjhe latter route would make better time, and there was only one change. Acting on this information of the agent, the appellees then directed the routing of the shipment over the interstate route via El Paso. The Texas - & Pacific Railway Company then received the cattle and delivered a bill of lading to appellees agreeing to transport the cattle, consisting of fourteen cars, as routed by appellees, “from Pecos, Texas, station to El Paso, Texas, station, consigned to Leslie & Wharton, Stratford, Texas, at the rate of tariff per car.” At Stratford, Texas, the point of destination, the local agent of the Chicago, Rock Island & Gulf Railway Company demanded and collected the freight tariff charges on the shipment at the rate of $89 per ear, and over protest was paid by appellees. It was conclusively proved that the freight tariffs issued by the Texas & Pacific Railway Company and filed with the Interstate Commerce Commission and in effect at the time of shipment was a rate of $25 per car from Pecos to El Paso on interstate shipments of livestock, and that the interstate rate in effect from El Paso to Stratford over the El Paso & Southwestern and Rock Island, issued and filed with the Interstate Commerce Commission, was $64 per car; making the sum of the two $89. There was no through tariff rate over the interstate route authorized. The evidence was uncontradicted that the freight rate from Pecos to Stratford over the other routes, which were entirely intrastate, then in force and authorized by the Railway Commission of Texas was a through rate of $54 per car. Upon arrival of the cattle at El Paso two of the steers were fatally injured and died, caused by injuries received en route. The Texas & Pacific Railway Company delivered the cattle at El Paso to the El Paso & Southwestern Railway Company, and the latter received and negligently kept the same in its pens there for four days before shipping out. There was proof that the cattle were damaged in shipment and by the delay, and that additional expense and loss occurred to appellees by reason thereof. All issues of fact were decided by the jury against the-contention of the appellants, and there is evidence to support the same; and we here-adopt the findings of the jury.

Appellees instituted the suit to recover of appellants the value of the two dead steers, and deterioration in value and injury to the cattle shipped resulting from alleged negligent handling and delay en route, and to recover of the Texas & Pacific Railway Company the amount of' the freight charges collected above $54 per car as damages for alleged misrepresentation and misinformation as to freight tariff charges of the-routing. In accordance with the verdict of the jury a judgment was rendered in favor of appellees against the Texas & Pacific Railway Company for $540, covering $490, the difference between the through intrastate freight rate and the sum of the interstate rates filed with the Interstate Commerce Commission, and $50, the value of the two steers which died in transit to El Paso; and in favor of appellees against the El Paso & Southwestern Bailway Company for $1330 damages resulting from injury in delay in shipping from El Paso; and in favor of the Chicago, Bock Island & Gulf Bailway Company against appellees.

After stating the case.—The assignments of the appellant El Paso & Southwestern Bailway Company, are first taken up. The first assignment, complaining that the court’s charge is erroneous as assuming certain issuable facts as proven, should be, we think, overruled, as not fairly, subject to the objection urged.

The second, fourth, fifth and seventh assignments present the same question, and can be here considered together. Appellants offered" to show that it was usual to receive notice several days ahead for cars for shipments originating on its line, and that it was the general custom of such shippers to give ten to twenty days prior notice, which evidence was on objection excluded by the court, and this is complained of in the assignments. A special charge was asked, and refused by the court, to the effect that if at the time the cattle in question were tendered'there were previous orders on file with appellant which consumed the supply of cars on hand, and appellant exercised reasonable care under the circumstances to furnish cars without delay, it would not be liable for any delay. In this connection it was proved in the case that nearly all the stock shipments moved in April, May and June, and that there was a great demand for cars at that time, and that this condition exists every year at that time, and that it is usual at this place. As against the delay in shipping out the cattle in question after receiving same in its pens from the Texas & Pacific Bailway Company, as said by appellant in its brief, “its sole defense was that it had. not been notified of the shipment in time to collect this number of cars, and that several orders were on hand for cars ahead of this order.” There is no evidence that appellant then owned a single car, or if it had any how'many it owned; neither is there any evidence as to the number of “orders ahead” of this shipment. Appellant received about twenty hours notice of the intended shipment on its line before arrival. Eo duty was -imposed on appellees to give ten or twenty days notice of the arrival of a through shipment, nor could appellant defend against a usual and ordinary through shipment on the ground that it was entitled to receive ten or twenty days previous notice that it would be expected to receive a shipment from a connecting carrier. Seasonably prompt transportation of through commerce would become impossible were such notice required. We do not think the assignments present reversible error. It appearing that the shipment was usual and occurring at this time of each year, it could not be said that the shipment presented such sudden and unforeseen conditions as appellant could not reasonably have anticipated and provided against in the usual discharge of its duty as a common carrier. There was four days delay in shipping out by appellant after receiving the cattle. It was the duty of appellant as a common carrier to have and furnish enough cars without unreasonable delay to meet all demands it could reasonably anticipate. And it could not be said from the evidence that the delay in furnishing cars was without the fault of appellant.

By its third assignment the appellant complains of the refusal of the court to give the following special charge: “You are instructed that the E. P. & S. W. By. is not responsible for any agreement between the plaintiffs and the T. & P. agent ás to the cattle going through to destination in the ears in which they were shipped. If the delay in furnishing cars at El Paso was caused by the plaintiffs relying on the aforesaid agreement the E. P. & S. W. By. Co. is not liable therefor.” bfo recovery was predicated against appellant by appellees by reason of not having the ears ready for immediate shipment, but only for such damages as appellees suffered by its negligent delay in shipping out after the cattle were received by it for shipment. The court’s charge instructed the jury that appellant would only be liable for unreasonable delay occurring after the cattle were tendered to it in El Paso for shipment. Yeither did the evidence present any issue that appellees were seeking to hold appellant liable for any agreement of the Texas & Pacific Bailway Company to furnish cars through to destination. The Texas & Pacific Bailway Company agreed to furnish cars to El Paso, but refused to. agree to let its cars go off its line on a through shipment. The only evidence that appellees were relying on the Texas & Pacific cars going through is found in the evidence of one of the appellees when he was asked on cross-examination by appellant why he did not put in an order to this appellant for cars ahead of time, to which he answered that his understanding was that the cattle would go on through and he never thought about getting any more cars. It does not appear that appellant had reasonable grounds to rely on the cars going through, as a reason to excuse delay in shipment. The assignment is overruled.

Because certain owners of cattle had sometimes voluntarily left cattle in the appellant’s pens while they were making arrangements to sell them, would not authorize or justify the appellant in holding and delaying the shipment of appellees’ cattle; and it was not error to exclude the proposed evidence complained of in the sixth assignment. It appears conclusively that appellees were insisting on a prompt shipment by appellant.

The eighth assignment complains of the verdict being contrary to the evidence, and excessive. We think the evidence supports the findings of the jury, and the assignment must be overruled.

The appellant the Texas & Pacific Bailway Company has grouped ten assignments and presents them as involving the same question of law. The contention is that though the local agent may have negligently quoted the interstate rates of shipment, and the appellees relied upon the rates so quoted in routing the shipment, still the appellees could not legally recover from appellant the difference between the wrongfully quoted rate and the lawfully published interstate rate. Under the authority of the case of Texas & Pacific Ry. Co. v. Mugg & Dryden, 202 U. E., 242 (50 L. Ed., 1011), the contention, we think, must be sustained. While the facts in that case are not entirely similar to the instant one, the principle announced is the same and applicable here. The suit there, as here, was not on contract, but in damages for misrepresentation as to rates involving a financial loss to the shippers in a contract based on the quoted rates. The element of damage there, as here, was the amount of the freight charges in difference between the quoted rate and the lawful rate. The effect of the decision is to deny a recovery back of any part of freight charges as a basis for reparation in a suit for damages for mis representation of true lawful rates. The reason underlying the decision is that the interstate rate, when regularly established, is the rate imposed by the law and not the railway company, and hence the shipper is charged with knowledge of the lawful rates published; and to allow the shipper to receive back a part of the lawful rate, either as a basis of reparation for damages for misrepresentation or breach of a contract to carry for less than the lawful rate, would, in practical results, operate as a violation of law, in that the shipper in the particular shipment would be enjoying the benefit of a lower .rate than the lawful rate. It is true that the appellees were misled into taking a more expensive route. But their only damage is that of being required to pay more freight charges than they were led to believe by the agent that they would have to pay. In the Mugg & Dryden case they were led to believe by the agent that the rates were less; and they contracted in reference to the quoted rates, and suffered loss in consequence. If appellees were charged with a knowledge of published interstate fates, and the law prohibits the enjoyment of a less rate, a recovery back of a portion of such lawful rates, as damages resulting, could not be legally predicated on the error of taking the more expensive route. We conceive that to be the effect of the decision supra. It follows that it was error to allow a recovery for the freight rates of $490. The error is curable, however, by a remittitur of that amount by appellees, if they elect to do so. The other assignments are overruled.

The judgment against the El Paso & Southwestern Bailway Company is affirmed; but the judgment against the Texas & Pacific Bailway Company is reversed and remanded unless appellees within twenty days from the date of this judgment file a remittitur of $490, being the freight charges; in which event the judgment of the District Court will he modified and affirmed for $50, the value of the two dead steers; said appellant to recover of appellees its cost of appeal.