Houston & Texas Central Railroad Company et al. v. W. J. Everett, 99 Tex. 269

BROWN, Associate Justice. The following statement of the case and of the evidence will be sufficient for the purposes of this opinion: Everett was the owner of certain cattle which he desired to ship from the town of Llano, in Texas, to Fairfax, in Oklahoma Territory, and presented to the agent of the Houston & Texas Central Railroad Company at Llano the following writing: “Llano, Texas, April 8, 1903. Mr. E. W. Tarrence, Agent Houston & Texas Central Railroad Company, Llano, Texas.

Dear Sir: For the purpose of making a shipment of cattle from Llano, Texas, to Fairfax, Oklahoma Territory, I desire thirteen cars at Llano on the 14th day of April, 1903. • I herewith tender you one-fourth of the freight charges for the use of the cars. (Signed) W. J. Everett.” The railroad company failed for one day to furnish the cars in accordance with the demand; but having furnished the cars the next day, the cattle were loaded at Llano and shipped over the Houston & Texas Central Railroad to Brenham, thence by the Gulf, Colorado & Santa Fe and the Atchison, Topeka & Santa Fe Railroads to their destination.

When the application for the cars was made, Everett informed the agent that he wished to send his cattle by Lampasas, thence over the Gulf, Colorado & Santa Fe Railroad; or by McNeil, and then to Milano Junction and over the Santa Fe. He inquired as to the through rate of freight from Llano to Fairfax, and was told that it was $63.25 by Brenham. The agent told him that he had no through rate by Lampasas or McNeil, but that he thought he could get the same rate by either route.

Before the cattle were loaded Everett again inquired of the agent as to the rate, and was informed that there was no through rate by Lampasas or by McNeil, and that he could not give a through waybill to the place of destination by either of those routes, but that he could give him a through waybill by Brenham, thence over the Gulf, Colorado & Santa Fe,' at the rate stated. Everett was not satisfied with having to go by Brenham, but finally signed the contract.

At that time the agent at Llano had no authority to make a through rate from Llano to Fairfax except by Brenham, and then over the Gulf, Colorado & Santa Fe, and had no authority from either of the other roads to make a contract for the through carriage of the cattle, except as above stated. The distance by Brenham was something over two hundred miles further than by either of the other routes; the cattle were on the road from Llano to Fairfax sixty-two hours. They could have been delivered by ordinary care and diligence over either of the other routes within thirty-two to forty hours.

The cattle were damaged by delay caused by the greater distance they were carried, and were also damaged by delay and the manner of handling them upon the connecting lines. Everett brought this suit to recover of the plaintiffs in error for damages to his cattle on account of the delay and the manner of handling them on the way, and also to recover of the Houston & Texas Central Railroad Company the penalties for failure to deliver the cars according to the demand made.

Upon the trial the court gave to the jury the following charge: “You are instructed that if you find that plaintiff’s cattle have been damaged by the negligence of defendants, then such damages, if any, are presumed in the law to have occurred by the negligence, if any there was, of the last carrier receiving said cattle; and it would devolve upon such last connecting carrier to show from the evidence that such damages, if any, occurred on the line or lines of some other connecting carrier, in order for it to be relieved from being responsible for such damages, if any, as may have been shown to have been incurred from negligence, if any, while said cattle were in transit; and the same rule would apply with each last connecting carrier that handled said cattle, unless the evidence satisfies you that the damages, if any, did in fact result from the negligence, if any, of one or more of said defendants on their respective lines of railroad; and then if the evidence so shows, you will apportion the damages, if any, between the respective defendants according to such damages, if any, as resulted from the acts of negligence, if any, that occurred on their respective lines of railroad, and for no more.” In this charge the court tells the jury, in effect, that the last carrier, which was the Atchison, Topeka & Santa Ee Railroad Company, was liable for all the damages which occurred to the cattle in the course of shipment, unless it “should satisfy” them by the evidence that the damage occurred on one of the other connecting lines.

This charge placed upon the connecting carriers a greater burden than the law requires. Willis v. Chowning, 90 Texas, 617; Galveston, H. & S. A. Railroad Co. v. Matula, 79 Texas, 577. The charge was such error as requires a reversal of this judgment. The Houston & Texas Central Railroad Company requested the court to charge the jury as follows: “You are instructed that if you believe from the evidence that the plaintiff, W. J.

Everett, demanded of defendant, the Houston & Texas Central Railroad Company, that his cattle be routed by way of Lampasas, or by way of McNeil and Milano, and that said cattle be waybilled through at the rate of $63.25 per car, and if you further believe from the evidence that under the rules and regulations of said defendant and of the connecting carriers in force on April 15, 1903, such cattle could not be waybilled through by either of said routes, and that said cattle could only be waybilled through at said rate by said defendant, under such rules and regulations, by way of Brenham, then the plaintiff can recover no damages, if any, which may have been suffered by said cattle on account of their transportation by way of Brenham.” If the facts grouped in the charge be. true, then neither of the railroad companies in this case could be liable for damages caused by carrying the cattle by way of Brenham instead of by a shorter route; and as the evidence was sufficient to authorize the jury to find the facts stated in the charge, the court erred in not submitting the issue.

When Everett demanded of the agent of the Central Railroad Company a through waybill and contract of shipment, with a fixed rate for the" entire trip, the agent of that company could not, in compliance with the demand, ship the cattle over any route other than that for which he had authority from the connecting lines to make such a contract. The condition that Everett placed upon the acceptance of the cattle, of giving a through way-bill and through rate, necessarily designated the route by Brenham, that being the only route over which such rate and waybill could be given.

We think that it is well settled by the authorities, although there is some conflict, that in the absence of any agreement or custom or course of dealing from which authority could be implied, the initial carrier has no power to make any contract which would bind the connecting carrier.

If the connecting carrier be so situated in relation to the initial line that the law requires it to receive and carry such freight, then such carrier would be liable if "it should refuse to do so, and if negligent, would be liable for damages under the law; but the liability would not be based upon the unauthorized contract made by the initial carrier. Gulf, C. & S. F. Ry. Co. v. Dwyer, 84 Texas, 194; 5 Am. & Eng. Encyc. Law, p. 459; Crossan v. New York & N. E. Ry. Co., 149 Mass., 196.

The writ of error was granted in this case because the demand was made for cars to go beyond the line of the Houston & Texas Central Bailroad Company; but the point was made on the allegations of the petition, which are materially different from the written demand; and as the case must be remanded for another trial, and the party may eliminate that question by an amendment to the pleadings, we find it unnecessary to discuss it here. For the errors stated, the judgments of the district court and Court of Civil Appeals are reversed and the cause remanded.