Chicago & G. W. Ry. Co. v. Plano Milling Co.

When all the facts found by the trial court are kept in mind, we think it sufficiently appears that the judgment is erroneous so far as it is against the Chicago Great Western Railway Company. The theory upon which the trial court held that company to be liable was that it "became an absolute insurer of the arrival of the corn in good condition, by reason of its negligence and wrongful act in making the diversion of the shipment without noting same upon the bill of lading." It may be conceded, without deciding the question, that the court's conclusion was correct if he meant that the Chicago Great Western Railway Company, because of its default in the particular specified, became an insurer of the arrival of the corn at Sherman in good condition; still judgment should not have been rendered against that company, for the court expressly found that the evidence was "insufficient to show whether the corn reached Sherman, Tex., in good condition or not" But if the trial court meant that the Chicago Great Western Railway Company by changing the routing of the corn became an insurer of its arrival in good condition at Plano, Tex., we think the conclusion was plainly erroneous; for that company never undertook to transport the corn further than Sherman, Tex. We have found nothing in. the record which supports the contention of appellee Puterbaugh that said railway company was liable to him for injury to the corn after it reached Sherman, and after the Houston Texas Central Railway Company, in compliance with the instruction in the bill of lading, had notified the Walker Grain Company of its arrival there. After such notice was given, it can hardly be contended that the failure of the Chicago Great Western Railway Company to note the change of routing in the bill of lading was a proximate cause of injury thereafter accruing to the corn because of delay in transporting it to Plano. For that delay, it seems from the findings, the Missouri, Kansas Texas Railway Company of Texas was responsible; for the Walker Grain Company, having, as stated above, been itself promptly notified by the Houston Texas Central Railway Company of the arrival of the corn at Sherman, shortly thereafter notified that company (the Missouri, Kansas Texas Railway Company of Texas) that the corn was at Sherman, and requested it to take up with the Houston Texas Central Railway Company the matter of having it transported to Plano. Why the Missouri, Kansas Texas Railway Company did not promptly comply with the request of the Walker Grain Company does not appear from anything we find in the record. It was due to its failure to so comply therewith, it seems, that the corn remained stored in the car at Sherman so long, and its being so stored, it reasonably appears from the findings, was the cause of the injury it sustained. Such failure and the consequent delay of about one month in the transportation of the corn from Sherman to the nearby town of Plano it seems to us was plainly a breach of the undertaking to transport the corn to said town and there deliver same to its owner within a reasonable time, evidenced by the bill of lading issued to the Walker Grain Company by the agent at Ft. Worth of said Missouri, Kansas Texas Railway Company of Texas. Why, then, should not said railway company have been held to be liable to the owner of the corn for the consequences to him of such breach? The reason advanced by said railway company in its brief is that it was not its undertaking. In support of that contention it insists that its said agent acted without the scope of his authority as such when he issued the bill of lading, because it had not then acquired possession of the corn. It is not necessary to determine whether the contention would be tenable or not (said railway company never having acquired possession of the property) it the suit was one for damages for a conversion of the corn; for, plainly, it was not that kind of a suit. It was, instead, a suit for damages for delay in transporting the corn, to Plano, whereby, it was claimed, it was injured. It may be conceded, without so determining, that the agent at Ft. Worth of said railway company exceeded his authority as, such when he issued the bill of lading purporting to bind it to transport over its own and connecting lines from Ft. Worth to Plano property it had not then and never afterward acquired possession of; still the fact remains, it reasonably appears from the findings, that said railway company adopted, by attempting to perform, the undertaking by its said agent on its behalf; for the corn was transported to Plano, and the cost in freight charges for carrying it there was demanded of and paid by the milling company. Now, if said railway company had a right to repudiate the contract of its said agent in its *Page 836 behalf, it did not have a right, affirming same and undertaking performance thereof, to thereafter claim exemption from liability to the owner of the corn for the consequences to him of its negligence in such performance. Perhaps in fairness it should be added here that the statement that the carriage of the corn to Plano was in performance of the undertaking evidenced by said bill of lading is not based on a specific finding by the court to that effect, but on the fact that the carriage of the corn to that town is not otherwise accounted for in the findings the court made. So far as anything in the record shows to the contrary, it was not pretended at the trial that any one else than said railway company ever undertook to carry the corn, or have same carried, to Plano. Therefore we think a fair, if not a necessary, inference from the findings is that the corn was carried to Plano at the instance of said railway company in an attempt by it to comply with the undertaking evidenced by said bill of lading. So construing the findings, there can be no doubt, we think, that the conclusion of the trial court based thereon, to wit, that said railway company was not entitled to be heard to deny liability for injury to the corn, was warranted. 2 C.J. pp. 489, 490, 492, 493, et seq.; 21 R.C.L. pp. 927, 932. The judgment will be affirmed so far as it is against the Missouri, Kansas Texas Railway Company of Texas, and so far as it is in favor of parties specified in the statement above; and it will be reversed so far as it is against the Chicago Great Western Railway Company, and judgment will be here rendered that appellee Puterbaugh take nothing as against it. On Motion of Missouri, K. T. Ry. Co. of Texas for Rehearing. We are not sure, after a re-examination of the record in connection with the motion, that the contention of the Missouri, Kansas Texas Railway Company of Texas that neither the pleading nor the evidence warranted an affirmance of the judgment against it on the ground stated in the opinion should not be sustained; but as we have concluded that, if it should be, the judgment against said appellant nevertheless should be affirmed on another ground, the motion will be overruled. When the record was first before us we were inclined to think the case was within a rule, recognized by many courts, which denies to the agent of a carrier authority to issue a bill of lading covering goods the carrier has not actually received. 10 C.J. 197. Further consideration of the record has convinced us that that rule should not be applied to the case. It was, we think, within the scope of the authority of the Missouri, Kansas Texas Railway Company of Texas' agent to issue a bill of lading, binding it to take up the corn from its connecting carrier and continue the carriage thereof from Sherman (its destination under the bill of lading issued by the Chicago Great Western Railway Company) to Plano. We think it will not be denied that had there been no change made in the routing of the corn, and had it been carried over the Missouri, Kansas Texas Railway Company's line of railway from Kansas City to the point where it connects with the Missouri, Kansas Texas Railway Company of Texas, the latter would have been bound by the undertaking on its behalf evidenced by the bill of lading in question. Railway Co. v. Grain Co., 206 S.W. 126. If that is so, then the bill of lading was not within the rule of law referred to, and if the Missouri, Kansas Texas Railway Company of Texas was not liable as determined by the trial court it was not because its Ft. Worth agent was without power to bind it by such a contract, but for some other reason. The only other reason suggested by the findings of fact made by the trial court (there is no statement of facts with the record) is that the bill of lading in question was issued as the result of a mistake on the part of said agent of the Missouri, Kansas Texas Railway Company of Texas at Ft. Worth, and on the part of Mr. Walker of the Walker Grain Company, or as to the routing of the corn from Kansas City. To have entitled the Missouri, Kansas Texas Railway Company of Texas to relief against the contract on that ground it must have set up such mistake in its pleadings (2 Abb. Trial Brief, p. 1496; 1 Abb. Trial Brief, p. 596), and it did not.