Gulf, Colorado & Santa Fe Railway Co. v. Everett & Long

KEY, Associate Justice.

Appellees instituted this suit against the Gulf, Colorado & Santa Fe Railway Company, the Missouri Pacific *168 Railway Company and the Texas & Pacific Railway Company, to recover the market value of a carload of corn shipped by appellees from Foster, Mo., to Belton, Texas, over the lines of railway operated by the defendants.

At the trial the court instructed a verdict in- favor of the Missouri Pacific Railway Company, and submitted the case to the jury as against the other two companies. Verdict and judgment were rendered against each company for $144.77%, and each company has prosecuted an appeal.

The trial court gave the following instruction to the jury: “You are charged that in case of a shipment of personal property, which at time of shipment was in good condition and order, and at time of arrival at point of destination was in bad condition or order, so as to materially affect its usefulness or value to the consignee, or the party to whom the shipment was made, and said deterioration of value or use resulted from the carelessness or negligence of the railroad or railroads carrying the same, then in such case the consignee or owner of said property so shipped may refuse to receive said property in such injured condition and may sue the railroad or railroads causing such injury or damage for the value of said property.”

This charge is assigned as error, and we sustain the assignment. “As a general rule, the fact that the goods are injured upon the journey through causes for which the carrier is responsible does not of itself justify the consignee in refusing to receive them, but he must accept them and hold the carrier responsible for the injury. . . . Delay on the part of the carrier does not constitute a conversion of the goods, no matter how long continued, so as to make him liable for their value; and so long as the goods remain in specie, however much they may be depreciated in value, the consignee or owner must receive them when tendered, and can recover from the carrier only the damages which he has sustained by the delay.” Hutch, on Carr., secs. 770d, 775; Gulf, C. & S. F. Ry. Co. v. Jackson, 4 Texas Civ. App., 74; Gulf, C. & S. F. Ry. Co. v. Booton, 4 Texas Civ. App., 103; Baumbach v. Gulf, C. & S. F. Ry. Co., 4 Texas Civ. App., 650.

In the case at bar there was no total or substantial destruction of the property, but it reached its destination in a 'damaged condition, which did not render it worthless, but depreciated its value. Such being the undisputed facts, the plaintiffs did not have the right to refuse to accept the property and sue the defendants for its value, and the court erred in giving the instruction complained of.

The plaintiffs pleaded and offered testimony tending to show that the Gulf, Colorado & Santa Fe Railway Company agreed to retain the property and compensate the plaintiffs, but that issue was not submitted to the jury, and if it had been it could not affect the other defendant, because it is not pretended that it was a party to the agreement referred to.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.