American Ry. Express Co. v. Santa Anna Gas Co.

Finding of Facts. JENKINS, J. On February 28, 1920, appellee delivered to appellant, at Santa Anna, Tex., one tent and one trip spear, to be shipped to Cisco, Tex. On the same day appellee took the trip spear from the possession of appellant, and used it for two or three days, when it returned the same, and the tent, together with the spear, were loaded in an express car, billed for Cisco. Neither of the articles was ever delivered, and there is nothing in the statement of facts to indicate what became of them. The trip spear was of the value of $630, and the tent of the [272] value of $35. Appellant, at the time these articles were first delivered to it, issued its receipt for the same, which contained, among other things, the following: “In consideration of the rate charged for carrying said property, which is dependent upon the value .thereof, and is based upon an agreed valuation of not exceeding $50 for any shipment of 100 pounds or less, and not exceeding 50 cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than $50 for any shipment of 100 pounds or less, or for more than 50 cents per pound, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein, the shipper agrees that the value of the shipment is as last above set out, and that the liability of the company shall in no event exceed such value.” This condition in the receipt was in accordance with, the regulations adopted by the Interstate Commerce Commission. No weight and no value was declared at the time the goods were delivered to appellant, nor at any time. The weight of the trip spear was 500 pounds. Appellee brought this suit against appellant to recover the value of the trip spear and tent, $665, alleging that appellant had converted the same. Appellant pleaded its contract of shipment, claiming that it was liable only for 50 cents a pound on the 500 pounds, weight of the trip spear. Judgment was rendered on the verdict of the jury for $665. Opinion. The determinative issue in this case is whether, appellant is liable under its contract of shipment, or for conversion. If under the former, the judgment should have been for $250 for the trip spear and $35 for the tent. If under the latter, the correct judgment was rendered. If appellant converted the property to its own use, it cannot defend under its contract of shipment, and it is liable for the full value of the property converted. In this state a carrier cannot limit its liability by contract. Article 708, Revised Statutes; Railway Co. v. Crippen (Tex. Civ. App.) 147 S. W. 361; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834. Appellant contends that the evidence in this case does not show a conversion, and cites in support of its contention Williamson v. Railway Co., 106 Tex. 294, 166 S. W. 692. In that case, the goods shipped by the railway company, for which suit was brought, were shown to have been destroyed by fire; such being the case, there was no conversion on the part of the carrier. Appellant also cites the case of Elder, Dempster & Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975, in which the following language is used: “Trespass does not arise ‘from the mere omission to do a duty. * * * It must be an act committed, as contradistinguished from an act omitted. * * * A very long delay in the delivery of the cotton is shown, but no delay in delivering, so long as the carrier safely keeps the property, will amount to a conversion.’ ” (Italics ours.) In that case it was shown that the cotton was still in the possession of the carrier. The case of Elder, Dempster & Co. v. Railway Co., supra, adopted the views of this court in the case of Davies v. Railway Co., 62 Tex. Civ. App. 599, 133 S. W. 295, in which the following language is used: “In order to constitute a trespass, there must be some act done and not the mere failure to perform an act which one in duty owes to another. Trespass does not arise ‘from the mere omission to do a duty.’ * * * Where, through the negligence of the employees of a railroad company, a mule was run over and killed, this was trespass; where, through such negligence, goods were left exposed to the weather and suffered damage, this was not trespass. In the one instance, through' negligence, an act was committed; in .the other instance, through negligence, an act was omitted which should have been performed.” If appellee’s ground of complaint was that the appellant failed to deliver the goods shipped within a reasonable time, this would not show a conversion, and the suit would be one upon contract for failure to deliver the goods within a reasonable time. But, as there is no evidence in this case that appellant still holds the goods subject to delivery at some future time, the presumption arises that it has converted the goods to its own use. Williamson v. Railway Co., supra. What became of the goods was a matter peculiarly within the knowledge of appellant, and the burden was upon it to show that they had been lost by theft, or destroyed by fire or flood, or in some other way, without the negligence of appellant, it has been deprived of the possession of the same. Failing to make such proof, the presumption is that it has converted the goods to its own use. Appellant cites numerous authorities with reference to shipments under federal control, which would be applicable if it had not converted the goods to its own use, but are not applicable under such state of facts. Appellee contends that the goods were not shipped upon a written contract at all, but upon an oral contract, without any limitation, except the common-law liability to transport and deliver the goods within a reasonable time. This contention is based upon the fact that the receipt for the goods, issued by appellant on February 28th, was retained by appellee, and that when it returned the goods on March 3d they were shipped without any additional receipt being issued. This is true, but the testimony of [273] appellee’s agent stows that tlie goods were shipped under the bill of lading previously issued. His testimony upon that subject is as follows: “I went back to the agent at Santa Anna to get the spear. I did not turn the receipt which he had given me back to him. The agent of the American Railway Express Company at Santa Anna gave me a receipt when I turned the spear in for shipment on the 28th, and I filed it at the office. When I went back to reship the spear the second time, I went to the office and got the receipt, thinking that he would want to take up that receipt and rebill it, I had the first receipt in my pocket at that time. I then kept the receipt, as he told me to let it go forward under the original bill. I agreed to that, and let it go on then.” We think that- this is sufficient to show that the goods were shipped under the written contract. We are of the opinion that the fact’ that federal control ceased on February 29, 1920, is immaterial, for the reason that, if the goods went forward under the receipt issued on February 28th, as we hold they did, the regulations theretofore established by Congress continued to be in effect. We quote from section 208 of the act of Congress upon this subject as follows: “All rates, fares, and charges, and all classifications, regulations, and practices, in anywise changing, affecting, or determining, any part of the aggregate of rates, fares or charges, or the value of the service rendered, which on February 29, 1920, are in effect on the lines of carriers subject to the Interstate Commerce Act, shall continue in force and dffect until thereafter changed by state or federal authority, respectively, or pursuant to authority of law; but prior to September 1, 1920,⅝ no such rate, fare, or charge shall be reduced, and no such classification, regulation, or practice shall be changed in such manner as to reduce any such rate, fare, or charge, unless such reduction or charge is approved by the Commission.” 41 Stat. 464. This would be applicable, if this was a suit upon the contract, instead of for conversion. Binding no error of record, the judgment of the trial court is affirmed. Affirmed.