Texas Midland R. Co. v. Cummer Mfg. Co.

HODGES, J. The appellee is a private corporation, with its place of business at Paris, Tex. The judgment recovered in this case against the appellant is based upon a claim that appellant’s agent negligently failed to properly divert a carload of crates which had originally been billed for shipment to Ida Muller at Laredo, Tex. The facts show that J. W. Warren was the president an,d manager of the appellee’s business at Paris; that he was represented by a sales agent, J. A. McGill, at Laredo, Tex. On the 17th of February, 1913, the appellee delivered a carload of crates to the appellant, consigned to Mrs. Ida Muller, care of Warehouse No. 2, Laredo, Tex. The goods were routed over the appellant’s line, the Missouri, Kansas & Texas Railway and the International & Great Northern Railway. On the 19th of February Warren desired to change the destination of the shipment, and requested the appellant’s agent at Paris to have the shipment diverted from Laredo, Tex., with Mrs. Ida Muller as consignee, to Columbus, Mexico, with J. W. Murray as consignee. Appellant’s local agent at Paris wired its general manager, F. B. McKay, requesting that the — 618 — diversion be made. McKay undertook to intercept tbe shipment before delivery to the International & Great Northern Railway Company, and directed its diversion from Laredo, Tex., to Columbus, Mexico, but failed to direct a change in the name of the consignee as requested by Warren. On February 20th Warren wired to James Beatty, assistant general manager of the Wolvin Line at Texas City, advising him that the car of crates had been diverted from Waco on that date, via the Missouri, Kansas & Texas Railroad, billed to J. W. Murray, Columbus, Mexico, and asking him to make an effort to get the car on the boat which left that point on Saturday following. Beatty immediately wired H. W. Landman, commercial agent of the Missouri, Kansas & Texas Railway, that the car from Paris to Tampico, due at Waco that day, must arrive at Texas City on Saturday the 22d, and to start a wire tracer. The car was diverted by the Missouri, Kansas & Texas Railway, but arrived at Texas 'City too late for shipment on Saturday. Warren, being under the impression from information received that the next boat would not sail from that point to Mexico until March 4th, directed that the goods be again diverted to another consignee at another point. But this message did not arrive till after the goods had been shipped over the Wolvin Line on the 24th to Tampico, Mexico. The agent of the Wolvin Line received from the Missouri, Kansas & Texas Railway, Company what they called a “transfer slip,” which gave the name of Ida Muller as the consignee at Columbus, Mexico; and this was accepted as giving the correct shipping instructions. The crates arrived at the docks on February 24th, were unloaded on the Wolvin Line wharf on the 25th, and loaded on the steamship City of Tampico the same day. The Wolvin Line issued its bill of lading, showing the shipment consigned to Mrs. Ida Muller, Tampico, hut, with final consignee, Mrs. Ida Muller, Columbus, Mexico, the original hill of lading was sent with the shipment, as required by the Mexican authorities in Tampico. James Beatty, the agent of the Wolvin Line, mailed a copy of its bill of lading to the Cummer Manufacturing Company at Paris the day after the steamship sailed from Texas City. Warren testified that he did not remember receiving that bill of lading. J. A. McGill testified that he did not know that the Wolvin Line had issued the bill of lading. Beatty, the agent of the Wolvin Line, did not inquire of any one about the apparent conflict in the name of the consignee mentioned in the telegram and letter received from Warren, and that contained in the transfer slip delivered to him by the Missouri, Kansas & Texas Railway Company at Texas City; but in construing the telegrams and letter he had received, together with the transfer slip delivered by the Missouri, Kansas & Texas Railway Com- ' pany, concluded that J. W. Murray was the original consignee, and Ida Muller was the new consignee. The steamer upon which the goods were shipped arrived at Tampico on March 1st. On the same date the agent of the Wolvin Line received a telegram from the appellee, requesting it to divert the car in question to J. A. McGill, Laredo, Tex., hut failed to do so, as it was then out of control of the Wolvin Line, since the vessel had cleared from Texas City, because of the requirements of the Mexican customs authorities. The evidence shows that no arrangements had been made for payment of the import tax levied by the Mexican authorities at Tampico, and that the goods were unloaded and held for these charges. It appears that J. W. Murray inquired several times at Tampico for goods shipped to him as consignee, but was informed that none were there. Notice was put in the mail, addressed to Mrs. Ida Muller, Columbus, Mexico, but met with no response, presumably for the reason that her post office address was Laredo, Tex. The crates remained for some time in the custody of the Mexican custom house authorities, and were finally sold to pay the import tax. Under the charge given the -jury found that the appellant’s agent was guilty of negligence in failing to give the correct name of the consignee in ordering the goods diverted from Laredo, Tex., to Columbus, Mexico, and that this negligence was the proximate cause of the loss. [1] It is contended here, as it was in the trial below, that if it be conceded that the facts alleged and proved by the appellee are true, they do not create any legal liability against the appellant, for the reason that the law did not impose upon it the duty of diverting the freight and there was no contractual undertaking to perform that service. In support of that proposition we are referred to the case of Patton v. Texas & Pacific Ry. Co., 137 S. W. 721, decided by this court, fin that case it was held that the initial carrier was under no legal duty to cause the diversion of freight that had left its line to a different destination from that mentioned in the original bill of lading, unless such a duty was specially assumed in the contract of shipment. The prominence of that issue of law in that case was such that the subsequent refusal of a writ of error by the Supreme Court should, we think, be regarded as an approval of the ruling. But the facts of this case are materially different. There the agent of the carrier never undertook to divert the shipment, nor agreed to do so. Here the carrier’s agent not only consented to cause the diversion, but actually secured a change in the destination, but, by giving erroneous directions concerning the consignee, caused a loss of the goods. It may be true that the appellant owed the shipper in this instance no duty to — 619 — undertake to change the destination of the goods after they left its line, and could not have been held for the consequences of a refusal to do so. But the same immunity from liability does not exist when the service is undertaken and is so negligently performed that damages result. When the appellant’s agent consented and actually entered upon the performance of the service of changing the destination of the freight, the attitude of the parties was changed, and a situation was produced in which there was a sufficient consideration to bind the appellant to a reasonably prudent performance of its engagement. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 685; Pollock v. Carolina, etc., B. & L. Ass’n, 51 S. C. 420, 29 S. E. 77, 64 Am. St. Rep. 683, 689; Hammond v. Hussey, 51 N. H. 40, 12 Am. Rep. 41; Kincheloe v. Priest’s Executors, 89 Mo. 240, 1 S. W. 235; 5 Thompson on Corp. § 6357 ; 6 Co. Jur. 1118; 9 Cyc. 310. In Pollock v. Carolina, etc., B. & L. Ass’n, the court quoted with approval the following language: “ ‘The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.’ * * * The principle which governs the liability of a corporation for failing to perform a duty voluntarily assumed is precisely the same as that which governs the liability of an individual in the like case.” [2] One who undertakes to change the destination of freight and negligently causes it to be missent is in the same legal situation as one who accepts goods for transportation and negligently delivers them at the wrong place. If loss results, the fact that the undertaking is voluntary no more excuses negligence in one case than it does in the other. That form of negligence under such circumstances amounts to more than mere inaction; it is- affirmative misconduct. The situation here would not have been materially different had the appellant’s agent committed an error both in the destination and in the name of the consignee. The attitude of the initial carrier toward the shipper in cases of this character, even after it has delivered the goods to its connecting carrier, is not in all respects the same' as that of an entire stranger to the transaction. Instructions for a change in the destination of freight must emanate from the party who is the real owner, or one who has the authority to divert; otherwise the carrier alters the destination at its peril. N. C. & St. L. Ry. Co. v. Grayson County Nat. Bank, 100 Tex. 17, 93 S. W. 431; 1 Hutchinson on Carriers, §§ 177, 193, 194. Such instructions must usually be delivered by telegraph, leaving little time for an intermediate or terminal carrier to investigate the matter of ownership. The initial carrier, having issued the bill of lading, is generally in a more favorable‘situation for ascertaining that authority. There was no error committed in submitting the issue of negligence to the jury. [3] It is also contended by the appellant that the real cause of the loss of the freight was the negligence of the Wolvin Line in failing to observe the instructions given as to the name of the proper consignee through other sources. Those issues were submitted to the jury, and its verdict involves a finding that the appellant’s agent was negligent. And even though his negligence may not have been the sole cause of the loss of the goods, yet the appellant would be responsible if it concurred with that of the Wolvin Line in causing the loss. The remaining assignments of error are overruled, and the judgment is affirmed. Footnotes [1] other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes