Missouri, K. & T. Ry. Co. v. Harris

KEY, C. J. (after stating the facts as above). [1, 2] While the matter was controlled by the court’s charge, and therefore does not constitute reversible error, we agree with the appellants in the contention under the first assignment of error that the court should have sustained their exception to so much of the plaintiff’s petition as sought to recover $250 for the use of the calliope while in its damaged condition. The petition did not show that the defendants when they made the contract for shipment had any notice that the plaintiff was going to use the calliope for any particular purpose; and, in the absence of such notice, the measure of damage was the difference in its value at the time and in the condition in which it arrived, and its value at the time and in the condition in which it should have arrived at its destination. However, the court in its charge gave that as the correct measure of damages, which was equivalent to sustaining the exception to that portion of the petition which sought to recover special damages on account of being deprived of the use of the instrument. [3] The uncontroverted testimony shows that the plaintiff delivered the calliope to the initial carrier on the 19th day of October, 1907, and it arrived at Dallas before the 25th day of the same month. Before it reached Dallas, the plaintiff went to the freight depot of the delivering carrier, delivered to it the bill of lading by which it was shipped to Dallas, made a contract with that carrier by which the property was reshipped from Dallas to Bruceville; the plaintiff prepaying the freight charges. After the plaintiff left the freight depot, the property arrived from Oklahoma City,' and two or three days thereafter, on the 25th day of October, 1907, was shipped out of Dallas and carried to Bruce-ville by the defendant the Missouri, Kansas & Texas Railway Company of Texas. The other defendant, the Missouri, Kansas & Texas Railway Company, was in no wise connected with that shipment, nor with the contract by which it was made. Both defendants pleaded the two-year statute of limitation. The plaintiff’s original petition was filed October 25, 1909. There was no testimony showing that any of the injury to the property occurred while it was in possession of the Missouri, Kansas & Texas Railway Company, but it was affirmatively shown that it was in a damaged condition when it reached Dallas in the custody of the other defendant, and was in such damaged condition when that defendant delivered it to the plaintiff at Bruceville. We are of the opinion that the two-year statute of limitation applies to cases of this class. Railway Co. v. Roemer, 1 Tex. Civ. App. *1088 191, 20 S. W. 843; Martin v. Tel. Co., 6 Tex. Civ. App. 619, 26 S. W. 136; Railway Co. v. Clemmons, 19 Tex. Civ. App. 452, 47 S. W. 731. We also hold that there was no continuous contract of shipment from Oklahoma City to Bruceville, in so far as the initial carrier was concerned; that defendant was no party to the second contract between the plaintiff and the other defendant, by which the property was transported from Dallas to Bruceville. Therefore, as the suit was not instituted until nore than two years after the shipment reached Dallas, and after the Missouri, Kansas & Texas Railway Company’s connection with the transaction had ceased, we hold that, as to that defendant, the plaintiff’s cause of action was barred by. limitation, and the court should have so instructed the jury and directed a verdict for it. [4] As to the other defendant, a different state of facts exists, which, in our judgment, requires the application of a different rule of law. Before the shipment had been completed under the first contract, that defendant made another contract, the effect of which was to modify and change the original contract. By and on account of that change the Missouri, Kansas & Texas Railway Company of Texas was not required to deliver the property to the plaintiff at Dallas, but its final destination was changed from Dallas to Bruceville. The effect of the two contracts was to obligate that defendant for a continuous shipment to Bruceville; and it was not required or contemplated that the plaintiff would even see the property at Dallas, much less make such examination as would disclose the fact that it was injured. The suit was instituted within two years from the time the property was delivered to the plaintiff at Bruceville, and therefore we hold that the cause of action was not barred as against that defendant. We have considered all the assignments and have found no reversible error, except that already noted. As between appellee and appellant the Missouri, Kansas & Texas Railway Company, the judgment is reversed and here rendered; as between appellee and the other appellant, the Missouri, Kansas & Texas Railway Company of Texas, the judgment is affirmed. Affirmed in part, and in part reversed and rendered.