San Antonio & A P. Ry. Co. v. Winn (132 S.W. 972, 1910)

JAMES, C. J.

This is an action against appellant, the final carrier, for the loss of certain articles and damage to certain other articles, shipped from Shreveport, La., to Corpus Christi, Tex.

There was sufficient proof that the arti-lles for which the damages are claimed were delivered to the initial carrier at Shreveport, and that they arrived at Corpus Christi ■over appellant’s line. They consisted of 2 mattresses, 2 pairs of springs, 1 feather bed, 7 pillows, 16 window shades, 3 lamps, 1 ■cedar rack, 2 art squares, 1 office chair, 1 steel range, and 1 crate of fruit in jars, and that all of said articles, except the stove, the fruit, and office chair were delivered in one large bundle around which the art squares were sewed. The employe who •checked all goods received at Corpus Christi testified that he unloaded one office chair, ■one crate of fruit, one range, and one couch, wrapped, and that he did not know what was inside the bundle marked, “one couch, wrapped.”

With this explanation we copy the court’s findings of fact, which are each and all sustained by the testimony:

“I find from the evidence the following Tacts:

“(1) That on or about Feb. -, 1909, plaintiff delivered to a certain transferman, ■not a common carrier, at Shreveport, La., the following articles, intending to have them shipped from Shreveport, La., to W. R. McLemore, consignee, Corpus Christi, Tex., to wit, 2 ostermoor mattresses, 2 pairs of springs, 1 feather bed, 7 pillows, 16 window ■shades, 3 nickel-plated lamps, 1 cedar rack, '2 art squares, 1 stove range, 2y2 gallons of fruit, and one office chair.

“(2) That these goods were to be delivered to a railroad company for transportation, which company was not the defendant, and the name of which railroad company was not proved; that the agent of said railroad company acknowledged to plaintiff’s wife that he had received the stove above mentioned; that plaintiff received a bill of lading for said shipment, neither the bill of lading nor its contents being before the court; and that, except for the stove, plaintiff and his wife never again saw said articles in Shreveport after they were delivered to said transferman.

“(3) That the said articles, except the stove, the jars of fruit, and the office chair, were done up in one large bundle, with the art squares as a covering, sewn together so that the contents could not be seen without breaking the bundle.

“(4) That on or about March 1, 1909, the San Antonio & Aransas Pass Railway Company received at its station at Corpus Christi, Tex., the following articles of freight consigned from Shreveport, La., to W. R. McLemore, Corpus Christi, Tex.: One office chair, one crate of bottled fruit, and one couch, wrapped, and other articles, not involved in this suit.

“(5) That on or about March 1, 1909, defendant, through its agents at Corpus Christi, Tex., issued notice by postal card, duly mailed in the United States mails, to W. R. McLemore, Corpus Christi, Tex., to this effect, to wit, -that a shipment of household goods and furniture was on hand ready for delivery to said W. R. McLemore; that no one coming for the goods, they were, in consequence, kept in the warehouse of the depot of said defendant for safe-keeping; that a second notice of the same sort was issued and mailed upon a date not in evidence, to which there was no response from consignee or any one else; that a third notice of the same sort was issued and mailed through the United States mails on the 7th day of April, 1909; that defendant exercised due and reasonable diligence to notify consignee that said shipment was ready to be delivered to him.

“(6) That said goods, in consequence of consignee’s not claiming them, had to be stored in defendant’s warehouse from March 1 to April 19, 1909,. and that during said time defendant and its agents exercised ordinary and reasonable care for the- protection, preservation, and delivery of same, and exercised the same care to this end that it would have exercised over its own property.

“(7) That no one called for said goods until about April 19, 1909, when one James Grant, a transferman employed for the occasion ’by plaintiff, presented a freight bill for them, and, at defendant’s warehouse, received the goods above mentioned in paragraph 4 hereof, the stove being in a broken condition, and the crate of fruit damaged, in that 2% gallons of the fruit was spoiled by reason of breakage to the jars; but that said Grant did not receive the office chair nor the couch, wrapped.

“(8) That the breakage of the stove and the fruit jars was unexplained.

“(9) That the damages for said breakage, together with the value of the office chair and that of the articles originally delivered by Mrs. Winn to the transferman at Shreveport, amounts to $125.75.”

The court’s conclusions of law are as follows :

“1. Defendant having received the stove and the crate of fruit as a connecting carrier, is liable as a common carrier for any damages that arose from the breakage of said articles.

“2. That the loss of the couch, wrapped, and the office chair occurred while defendant was acting as a warehouseman, under the statute in their custody, and that defendant, having exercised due and reasonable care to protect, preserve, and deliver said above-named articles, is not liable in damages for their value.

“3. That plaintiff is damaged in the sum of $125.75.”

Under Sayles’ Ann. Giv. St. 1897, art. 324, the court correctly, under the facts in evidence, applied to defendant the law concerning warehousemen. There remains no question of liability of defendant, except as to the stove and the fruit which were delivered to appellee in a damaged condition. There was nothing to show that the last-named articles, when they were received by defendant, were in the damaged condition. The burden of showing this was on the defendant. Ry. v. Gapper, 38 Tex. Civ. App. 61, 84 S. W. 694; Ry. v. Edloff, 89 Tex. 460, 34 S. W. 414, 35 S. W. 144. The court was therefore not in error in its conclusion based on the finding that the breakage of the stove and the fruit jars was unexplained. If these particular articles were in good condition when they arrived at Corpus 'Christi and when they were placed by defendant in storage, the finding that defendant had exercised proper care as warehouseman would probably have applied to them, as well as to the other property. But there was no proof of this.

We conclude that the findings of the trial judge should be sustained, except as to the amount of plaintiff’s damages. Defendant was liable only for the injury to the stove and the fruit. The only testimony on this subject was that of plaintiff, who placed the damage to the stove at $30 and to the fruit at $5.

The judgment will be reformed so as to allow plaintiff a recovery for $35, and as reformed it will be affirmed.

Reformed and affirmed.