Texas & Pacific Railway Co. v. Taylor

Mr. Justice Brown delivered the opinion of the court. On November 28, 1906, Taylor made demand upon the local agent of the railroad company at Colorado, Texas, for seven ears for the purpose of shipping to El Paso, Texas, 210 head of cattle and 6 head of horses, the ears to be furnished at Colorado, December 2, 1906. The railroad company failed to furnish the cars until the 13th day of December, 1906, on which day the ears were furnished and the plaintiff loaded his stock into the cars and shipped them to El Paso. The bill of lading zwas made to Taylor and called for the stock to be delivered to him at El Paso but the freight charges from Colorado to El Paso were payable at a place in Mexico to which the cattle and horses were shipped from El Paso. At the time Taylor made the application for the cars he and his father owned the cattle and horses and were holding them near Colorado within easy distance for loading them whenever the ears should arrive. The stock were held at all times ready for shipping within a few hours after the cars should be furnished. During the interval between the day on which the cars should have been delivered and the time when they were furnished Taylor made frequent inquiry, almost daily. The cattle were delivered to Taylor at El Paso and by him reshipped on another road to a point in Mexico. When Taylor made the demand for the cars he intended to finally ship the stock by another road to Colonia Dublan, Chihuahua Mexico, as he subsequently did. After the failure of the Texas & Pacific Bailroad Company to furnish the cars and after the stock had been shipped to Mexico Taylor’s father transferred his claim for damages to the defendant in error. The railroad company pleaded that it was prevented from furnishing the cars within the time required by law by conditions over which it had no control and it was without fault in the premises. There was proof from which a jury might have found this fact to be true, but the Court of Civil Appeals found that the evidence was not so conclusive as to justify the trial court in instructing a verdict for the defendant. The delay was ten days over the time allowed for delivery of the cars and the plaintiff recovered from the defendant $25 per day for each car for the ten days. This suit was based upon the following provisions of our Bevised Statutes: “Art. 4497. When the owner, owners or managers of any freight of any kind shall make application in writing to the superintendent or person in charge of transportation, to any railroad company operating a line at the point the cars are desired upon which to ship any freight, it shall be the duty of such- railway company to supply the number of ears required at the point indicated in the application within a reasonable time, not to exceed six days from the receipt [370] thereof, and shall furnish such cars to the persons applying therefor in the order applied for, without giving preference to any person.” “Art. 4499. When cars are applied for under the provisions of this chapter, if they are not furnished the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of twenty-five dollars per day for each ear failed to be furnished, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain.” “Art. 4502. It shall be necessary for the party or parties bringing suit against any railroad company under the provisions of this law, to show by evidence that he or they had on hand at the time any demand for cars was made the amount of lumber, cotton, wool, hides or other freight necessary to load the- cars so ordered; provided, that the provisions of this law shall not apply in cases of strikes or other public calamity.” The plaintiff in error assigns in this court that the trial court erred in refusing to give to the jury a peremptory instruction to find for the defendant. Under this assignment it is contended under different propositions that the undisputed evidence established these facts: First. That the plaintiff did not have the stock on hand when he ordered the cars. The appellee bought the stock and had them at the time within five miles of the station at Colorado ready to be loaded within a few hours after receiving notice of the arrival of the ears. He had the stock “on hand” within the terms of the statute. Crouch v. Parker, 56 N. Y., 597. Second. That the plaintiff was not the sole owner of the stock to be shipped. The language of the statute itself answers this objection, for it provides that “when any owner, owners or manager of any freight of any kind shall make application,” etc. Then in a subsequent article it is declared that in case the cars, shall not be furnished, the railroad company “shall forfeit to the party or parties so applying for them the sum of $25 per day,” etc. Taylor was the party who applied for the cars, wuas a part owner with his father of the stock and before the institution of this suit his father transferred his claim for damages to defendant in error, so that, in any event, Taylor was entitled to recover the whole amount in this case. Third. It is contended that the undisputed evidence showed that the failure to deliver the cars was caused by the congested condition of the business of the railroad company and that the company was not in fault in any way for the failure. The fact that the evidence offered is undisputed is not sufficient to justify a peremptory charge. It must be so conclusive that reasonable minds seeking to arrive at a proper conclusion could not differ as to the effect of the testimony. The evidence in this case upon that point was not of the character that would exclude all difference of opinion as to the conclusion to be drawn, and therefore the charge was properly refused. Fourth. It is claimed that Taylor had the intention when he ordered the cars and when he made the shipment to carry the stock into Mexico, therefore, it was a foreign shipment and the statute giving the penalties does not appfy. Taylor ordered the cars in which [371] to ship his stock to El Paso. The bill of lading bound the Texas & Pacific Bailroad Company to carry the stock to El Paso and there deliver them to Taylor. The stock was carried to El Paso and there delivered to Taylor and by him subsequently shipped by another railroad into Mexico. When the plaintiff in error delivered the stock to Taylor in ,E1 Paso its contract had been fully complied with and its liability terminated. This was purely and simply an intrastate shipment. Gulf, C. & S. F. Ry. Co. v. State, 97 Texas, 274; s. c., 204 U. S., 403; Houston Nav. Co. v. Insurance Co., 89 Texas, 1. The case of the Gulf, C. & S. F. Ry. Co. v. State, 97 Texas, 274, and the same case in 204 U. S., 403, are directly in point and decisive of this case. The decision of each of the courts in that case rests upon the fact that the contract of the initial carrier terminated at the point where the freight was restored to the control of- the shipper and a new contract became necessary to the transportation of ~ the freight to the final destination. In 204 U. S., on page 413, Mr. Justice Brewer said: “The one contract of the railroad companies having been finished he must make a new contract for his carriage to Goldthwaite, and that would be subject to the law of the State within which that carriage was to be made. ... To state the question in other words, if the only contract of shipment was for local transportation, would the State law in respect to the mode of transportation be set one side by a Federal law in respect to interstate transportation on the ground that the shipper intended after one contract of shipment had been completed to forward the goods to some place outside the State? Coe v. Errol, 116 U. S., 517-527.” This court placed the decision of the case of Houston Navigation Co. v. Insurance Company, 89 Texas, 1, on the same ground, saying: “We do not understand that it is necessary that all of the carriers engaged in an interstate or foreign shipment shall be parties to the contract of shipment for the entire route. In fact, as we understand the decisions, the character of' the commerce is not affected by the terms of the contract of the carrier as it relates to liability for the freight, but only insofar as it shows that it is or is not a part of a continuous carriage from the beginning point to the point of destination.” We are of the opinion that there was no error in the judgment of the Court of Civil Appeals and it is therefore affirmed. ON MOTION TO CQBKECT STATEMENT OF FACT IN OPINION. In our opinion it is said: “The bill of lading was made to Taylor and called for the stock to be delivered to him at -El Paso but the freight charges from Colorado to El Paso were payable at a place in Mexico to which the cattle and horses were shipped from El Paso.” The word “payable” used in this statement is an error; it should have been, “were paid at a place in Mexico.” The evidence showed that by the direction of the agent of the Texas & Pacific Bailway Company, Taylor paid the charges for the shipment to El Paso to the agent of the R. G. S. M. & P. Ry. Co., in Mexico. We therefore [372] make this correction of the statement in the opinion as pointed out by the motion of the defendant in error. Affirmed.