SAN ANTONIO & A. P. RY. CO. et al. v. HOUSTON PACKING CO., 167 S.W. 228

BROWN, C. J. The Court of Civil Appeals of the Eighth District certified to this court the following statement and questions: “Action by appellee against San Antonio & Aransas Pass Railway Company and St.

Louis & Southwestern Railway Company of Texas, for recovery of damages alleged to have been sustained by reason of delay in transportation of an oil car delivered in Houston to the first-named railway company, to be by it and its co-defendant transported to Frost, Tex., and there delivered to the Planters’ Oil Company, loaded with crude cotton seed oil, and then returned to appellee in Houston. “The cause was tried before a jury and was submitted upon special issues. The issues and answers thereto are as follows: “First.

Did plaintiff’s tank car, or tank cars of a similar nature, have a reasonably established rental value during the period from December 24, 1908, to March 2, 1909? Answer: No. “Second. If you find from the preponderance of the evidence that the' car had no rental value, and have answered question No._ 1 in the negative, then, in that event, you will answer the following question: What was the reasonable value of the use of the ear during the period when same was detained, to persons generally in the business of hauling and transporting cotton seed oil?

Answer: $514.73. “The testimony shows: That empty oil tank car No. 109 was delivered to San Antonio & Aransas Pass Railway Company December 21, 1908, under bill of lading which provided that the tank should be carried to Frost, Tex., and there loaded by the Planters’. Oil Company and returned. That the routing was over the San Antonio & Aransas Pass Railway to Waco, over St. Louis & Southwestern Railway Company of Texas to Frost, to be returned to AVaco by that company and from thence to Houston by the San Antonio & Aransas Pass Railway Company. The billing did not show what it was to be loaded with.

That car No. 109 was purchased and owned by Houston Packing Company to be used in transporting cotton seed oil. That the car was not returned to plaintiff until the 24th day of February, 1909. That a reasonable time to take the car to Frost and return would be ten days. That the car was diverted at Waco by the St. Louis & Southwestern Company. (In this connection, it was agreed that, as between these carriers, the liability, if any, was against the St. Louis & Southwestern Railway Company.) That the Houston Packing Company used fuel oil to run its plant, and sometimes had its cars come in loaded therewith.

That it owned nine oil tank cars, and, during the period of the detention of car 109, they used their cars and other cars exclusively for transporting cotton seed oil. The testimony does not disclose how many oil tank cars were handled by defendants for the Houston Packing Company prior to the time of the diversion of car 109. That the Planters’ Oil Mill Company, the consignee, handled cotton seed products, crude cotton seed oil. Crude oil is just as it comes from the seed. The Planters’ Oil Mill Company does not deal in fuel or mineral oils.

That the crude oil is purchased of the mills in the interior, and the refining is done at such concerns as the Industrial Cotton Oil Company, Merchants’ & Planters’. That the general purpose of the cars is for transporting the crude oil from the oil mills that do not operate refineries to the refineries and refining the crude oil into the finished product. That plaintiff put on the line of tank cars for the express purpose of handling cotton seed oil. It was unable to get cars with any degree of certainty from the railroad company when needed.

That, during the time this car was detained, plaintiff bought cotton seed oil from mills in Cuero, Yoakum, Giddings — all' over South Texas. That Cuero is on the San Antonio & Aransas Pass Railway. That car 109 on December 11th went to Waxahachie for oil, on December 18th it arrived from Waxahachie, and on December 21, 1908, left for Frost, Tex. That customarily the railroads on receiving billing for one of these cars come to plaintiff’s yards and get the car. That prior to December 18th plaintiff purchased cotton seed oil on the line of the San Antonio & Aransas Pass Railway, at Beeville, San Antonio, Cuero.

That it was during the first days of January, 1909, that the defendants learned that car 109 had been diverted. That defendants then knew that plaintiff was demanding the return of the car at once. That an agent of the St. Louis & Southwestern came and talked to plaintiff about the detention of the car about this time. That a demand was also made of the San Antonio & Aransas Pass Railway Company. That at one season plaintiff required the use of the oar more than at another season, to wit, during the busy season, which opens with the cotton sear-son in, August and, September and closes in March.

That the period that this car was out of service was plaintiff’s busy season. That there was no fixed rental value of the tank cars throughout the year. That, if plaintiff had had the car during the time it was delayed, it would have used same for hauling cotton seed oil. There was a steady demand for tank cars during that season. The market on oil has something to do with the value of tank cars, and their value is to a great extent determined by the buyer because of their availability to move oil during the time the seller wants it moved.

That at least $10 per day was the reasonable value of the use of the tank for the pwrpose of hauling and transporting eotton seed oil for sale or othermse, from December 21st to March 2d. That plaintiff was unable to get other tank cars to haul oil while out of the use of the one in question.

That, some days after appellants had received the car, notice was given them of the importance of prompt return of the car and of the particular use for which it was intended, and that it had been sent to Frost to be loaded with cotton seed oil. “The testimony above which is italicized was all objected to upon the ground that it tended to show a special use, special damage, and special matters of which defendants had no notice at the time of the execution of the bill of lading and delivery of the car and was therefore irrelevant, immaterial, and pertained to no issue. “First question: Should the measure of plaintiff’s damage, under the above statement of what the testimony shows, be determined by the rules of law on that subject, applicable to breaches of contract, or would the fact that defendants were common carriers and as such owed a public duty to carry with reasonable dispatch, irrespective of the contract, make applicable the measure of damages for delay, as in cases of tort?

For statement of distinction of rules, see Sutherland on Damages (3d Ed.) 45. “Second question: From the testimony above stated, would knowledge be imputed to the defendants so as to render them liable for the value of its use for that purpose, rather than its general use for oil transportation? “Third question: Was the italicized portion of the testimony admissible as against the objections urged to it? “Fourth question: Does this case come within the rule announced by the Supreme Court in Bourland v. Railway Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St.

Rep. 647, so as to render defendants liable for the value of the special use of the car from the time notice was given them of the importance of prompt return of the car and of the particular use for which it was intended, and that it had been sent to Frost to be loaded with cotton seed oil?” Counsel for appellee in their argument discuss facts not disclosed and issues of láw not presented in the certificate, to which we will confine our answers. The rules for certifying questions to this court have not been complied with, and the certificate should not have been filed.

However, we will make the best answer that we may be able upon the facts stated. We understand that the Houston Oil Company delivered the car to the San Antonio & Aransas Pass Railway Company at Houston on December 21, 1908, to be delivered by that railroad company to the St. Louis & Southwestern Railway Company at Waco, Tex., and to be by the latter company carried to Frost, and delivered to the Planters’ Oil Company to be loaded with crude cotton seed oil and by said railroad returned to Houston to the owner.

The billing did not; “show what the car was to be loaded with.” The car was not returned to its owner until February 24, 1909, being 86 days. Ten days would have been reasonable time for its return. The statement does not show at what time the St. Louis & Southwestern Railway Company delivered the car to the Planters’ Oil Company, nor at what date it was returned by that oil company to the St.

Louis & Southwestern Railway Company for transportation to Houston. ■ We are not able to intelligently answer the several questions separately; therefore we will answer generally as we understand the facts: Assuming that the delay occurred in delivering the car to the Planters’ Oil Company, and that the railroad company was not informed that it was to be loaded with oil, the value of the ordinary and usual use of such car would be the measure of damages for the failure to deliver it to that company within a reasonable time.

If the delay occurred after the car was loaded and returned to the railroad company and after it had been notified of the purpose to transport the oil to Houston for use there, the St. Louis & Southwestern Railway Company would be liable for such damages as would ordinarily result from the failure to deliver to the Houston Oil Company for the use to which the oil was to be applied. The facts certified show no special damages. The following cases state the law applicable to the facts: Railway Co. v. Belcher, 89 Tex. 428, 85 S. W. 6; Bourland v. C. O. & G. Ry. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N.

S.) 1111, 122 Am. St. Rep. 647. We do not answer abstract questions of law, and have therefore not directed our reply to any specific question.