St. Louis, B. M. Ry. Co. v. True Bros , 140 S.W. 837 ( 1911 )

The first assignment of error is predicated upon exceptions taken to admitting certain evidence. The evidence objected to was offered in support of allegations to show that appellees desired another route than the ones over which the cattle went, and that they made efforts to route the cattle the other way, and the agent refused to route the way demanded. It was in evidence that appellees subsequently entered into a written contract providing for the routing that the cattle went. The point made is that when a shipper agrees to ship cattle over a certain route, and enters into a written contract providing for such routing, in the absence of fraud or duress, it is error to permit the introduction of testimony to show, or tending to show, that he demanded another route, and made efforts to route his cattle another way. Speaking strictly to the admissibility of the evidence offered, and not to its sufficiency in this case to legally establish the alleged wrong, we do not think there was error in overruling the objection. In the case of Inman v. Railway Co., 14 Tex. Civ. App. 39, 37 S.W. 37, it was decided that the duty to route so as to deliver to the chosen connecting carrier arises at the time the freight is offered, and is imposed upon the railway company as a carrier, and not created by a contract. So, if the agent of the railway company refuses to route so as to deliver to one of its connecting carriers chosen and demanded by the shipper, there is a failure to perform a duty to the shipper imposed by law, and a completed legal wrong is then done. Hence such wrong becomes the basis for damages proximately resulting, and the rights of the parties would be measured thereby. Consequently, in a suit for the damages resulting from such wrong, any shipping contract subsequently made becomes a different transaction. The suit for such wrong is one thing, and a suit for breach of the terms of the contract becomes another. It follows, of course, in this distinction that the objection made to the evidence must fall.

The second assignment of error, which assails certain parts of the court's charge, presents, we think, several grounds for reversible error, and must be sustained. By the petition plaintiffs claimed damages (1) for negligent delay and rough handling en route causing injury to the cattle, and the death of some; and (2) for refusal of the agent of the initial carrier to route the cattle over the nearer and more direct routes chosen and demanded by them, and in the routing of the cattle by the agent of the initial carrier, over plaintiffs' protest, over the longer and less direct routes by way of the lines of the defendants in suit. The full charge of the court, reasonably construed, distinctively authorized a recovery of damages through injury and death of the cattle upon both grounds pleaded. Thus a double recovery for injury and loss to the cattle was permitted. The damages recoverable, if any, for the alleged misrouting, were, as pleaded by plaintiffs, the extra expense of feed charges, and switching charges at Houston caused by being forced to take the longer route. No other special damages were alleged.

The charge complained of further authorized a recovery for loss suffered through injury to the cattle by misrouting upon the finding by the jury that appellant negligently failed "to procure and furnish for plaintiffs' use at Norias cars wherein to ship said cattle." There was neither pleading nor evidence presenting such issue; and, as contended by appellant, we are firmly of the opinion that the evidence does not support nor justify an issue of misrouting the shipment by appellant even by accepting the plaintiff's evidence that he and Mr. Kleberg went to see the agent of appellant on the 5th and 6th of April, and told him that he desired to ship from Norias a large number of cattle, and wanted them to go over the appellant's road to Sinton, there to be delivered to the connecting line of the San Antonio Aransas Pass Railway Company to be carried to Waco, and there delivered to the Missouri, Kansas Texas Railway Company to be carried to Ringold. At this time, clearly by appellees' own evidence, they were not ready to ship the cattle, and were not in a position at this time to legally tender them for shipment. The cattle at this time were in the pasture, and had not been rounded up, and were not rounded up and offered for shipment until the 12th of April. Moreover, there is no evidence that would warrant, we think, a finding or inference that between the dates of April 5th and April 12th the agent of appellant refused to give plaintiffs the particular routing desired.

Until appellees had placed themselves in the attitude of shippers towards the appellant by properly tendering the cattle for shipment, no legal right could be predicated by them. No duty to route as demanded by the shipper was imposed upon appellant until the freight was offered. Appellees testified that, after the cattle were in the shipping pens of appellant, appellee again demanded of the agent to route as previously directed. But this request it appears from the evidence was given through Mr. Kleberg, and by him over the phone. Going to the evidence of Mr. Kleberg as to what passed between him and the agent in this respect, we are constrained to say that it wholly fails to show a refusal of the agent of appellant to route over the roads chosen by appellees.

The ninth assignment of error presents, we think, ground requiring reversal of the judgment. A special charge was asked and refused to the effect that the evidence failed to show any negligence of appellant as to the movement of the first train of cattle. As the record in this respect stands here, all the evidence agrees that there was no delay, no rough handling, and no negligence on the part of appellant in this first train load from Norias to Houston. If, as a matter of law, it should be said there was no negligence as to this first train load, and we think so, then the peremptory charge should have been given.

The court did not err in charging the jury to the effect that the shipment was an intrastate one. The shipment, as far as any carrier was concerned, ended finally at Ringold, Tex., and was there delivered to the shipper or consignee. And as the shipment made finally ended at Ringold, Tex., where possession was finally delivered to the consignee, and it was not intended nor contemplated that any carrier should further transport it, it became and was an intrastate shipment. It becomes unnecessary to pass on the remaining assignments of error.

Appellees have filed and present cross-assignments which are to the effect that the judgment should have been reformed to allow a recovery against the defendants jointly and severally. The Chicago, Rock Island Gulf Railway Company, against which it is sought to have the judgment here rendered for an additional amount, is not before this court by appeal, nor as an appellee in the appeal bond of the St. Louis, Brownsville Mexico Railway Company. Power Co. v. Moore,55 Tex. Civ. App. 157, 118 S.W. 831.

The judgment against the appellant is reversed and the cause remanded; but the judgment as to the other two defendants in the suit, not being appealed from, will remain undisturbed.