Since filing of the original opinion in this case, in which I reluctantly concurred at the time it was handed down, appellant has filed its motion for rehearing, wherein it is insisted, among other things, that the undisputed evidence shows that the damage complained of was the result of negligence on the part of the Texas New Orleans Railway Company, its connecting carrier, and not from any negligence on the part of appellant, and that all of the damage occurred after the freight left its line and its possession; that the freight damaged was shipped under the waybill or contract shown in the original opinion by the terms of which it undertook only to transport the freight to the point on its line where the same connected with its connecting carrier en route to destination; that by the terms of said contract, especially section 2 thereof, it limited its liability to such damage as might occur while said freight was on its own line and in its possession, and therefore this court erred in concluding and holding that the contract under which the shipment in question was made was one for through shipment from the initial point to the point of destination; and that under article 731, Vernon's Sayles' Civil Statutes, appellant is liable for all damages suffered by the shipper by reason of the negligence of *Page 159 the Texas New Orleans Railway Company, its connecting carrier.
The motion was refused by the majority of this court, and to this action of the court I have entered my dissent.
I do not think the contract was one for through shipment from point of shipment to point of destination. I think the contract upon its face expresses the agreement to be that the first company, the Galveston, Harrisburg San Antonio Railway Company, is to transport the freight to a connecting point of its line with the last carrier, and there to deliver the same to its connecting carrier, to wit, the Texas New Orleans Railway Company, limiting its liability to damages arising upon its own line. To bring a contract of this character within the terms of article 731, the contract entered into by the first carrier must be for carriage from point of shipment to destination. Where, in an intrastate shipment, the initial carrier contracts to transport freight to a point on its own line and there to deliver it to its connecting carrier, and by the terms of the contract limits its liability to damages occurring on its own line, the mere acceptance and transportation thereof by its connecting carrier to point of destination, under the original contract, does not make such contract one of through shipment as that term is used by article 731. Kansas City, M. O. Ry. Co. v. Adams, 182 S.W. 365; O. H. S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S.W. 328; Ry. Co. v. Hallam, 211 S.W. 809.
By section 2 of the contract in question it is provided:
"Sec. 2. If shipment is destined to a point off this company's road, it is agreed that this is no contract for through shipment, and this company's liability as a common carrier shall terminate on tender of delivery to a connecting carrier."
The undisputed facts show that the shipment was from Galveston and the place of destination Beaumont; that the line of the appellant extended in the direction of Beaumont only to Houston, where it connected with the Texas New Orleans Railway, which extended from Houston to Beaumont; and that the freight was delivered by appellant without delay and without damage to the Texas New Orleans Railway Company at Houston.
All the damage complained of occurred at Beaumont while the freight was in the possession of the Texas New Orleans Railway Company.
The laws of this state compel every railroad company chartered in this state to receive and transport freight offered to them for transportation from point of shipment on their lines where they connect with another line en route to destination. In the face of such law, the evidence should show something more than that a through shipment was made, that a price was fixed for the entire transportation and collection by the last carrier, before it ought to be held that the shipment was upon a joint contract for transportation that would render each carrier liable for failure of duty on the part of other carriers in the connecting lines.
"The mere receiving and forwarding freight delivered from a connecting line of railway is not evidence of a ratification of a through freight contract made by the railway company receiving the property from the shipper. The law compels such acts." Ft. Worth D.C. Ry. Co. v. Williams, 77 Tex. 121, 13 S.W. 637; San Antonio A. P. Ry. Co. v. Grady, 171 S.W. 1019, and numerous authorities there cited.
A railway company cannot be bound for damages to an intrastate shipment accruing upon the line of a connecting carrier where it limits its liability, by contract, to damages occurring upon its own line, from the fact that it performed some of the services contemplated by the contract as it is not at liberty, contract or no contract, to refuse to render the services.
Receipt of initial carrier for shipment of goods destined to point on line of connecting railroad is held not to show that the shipment was a through shipment within this article. Quanah, A. P. Ry. Co. v. Warren, 184 S.W. 232.
Where the initial carrier agrees to transport only to a certain point, though the shipment is consigned to a point beyond, there is no through contract of shipment, necessary for joint liability of the connecting carriers. Kansas City, M. O. Ry. Co. of Texas v. Odom, 185 S.W. 626.
It is, I think, erroneously stated in the original opinion that "the car was received by appellant for shipment to and delivery at Beaumont." Upon its face the contract made by appellant shows that such carrier only agreed to transport the freight from point of shipment, to wit, Galveston, to a point where its line connects with the line of a connecting carrier en route to Beaumont, and the other portions thereof emphasize and clearly show that it was not a contract for through shipment from Galveston to Beaumont. It expressly limits its liability to its own line and provides that its liability should terminate upon delivery to the connecting carrier. See section 2 of contract set out herein.
In Kansas City, M. O. Ry. Co. v. Adams, 182 S.W. 365, it is held that notwithstanding Vernon's Sayles' Civil Statutes, art. 731, declaring that all common carriers over whose lines property is received for through carriage shall be deemed connecting carriers *Page 160 and one the agent for the other, the initial carrier may by contract limit its liability for negligence to negligence on its own line. That the appellant did so limit its liability in this case I have no doubt.
I do not think the case of Ry. Co. v. Turner, and Ry. Co. v. Kansas City Produce Co., cited by the majority or original opinion, are at all applicable to the facts of the present case, and, as to the application of the other case cited to the facts of this case, we quote from appellant's motion as follows:
"The case of the St. L. S.W. Co. v. Grain Co., 186 S.W. 429, cited by the court, is distinguished from the case at bar in a very important and material particular. In the case at bar it is expressly stated in the contract of shipment that the defendant railroad was to act as the agent of the shipper to tender the shipment to a connecting common carrier, while in the case cited by the court, the language of the contract of shipment was as follows:
"`That this company agrees to transport only over its own line and, except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line.'
"This was the turning point in the decision in the case cited. We wish to call the court's special attention to the following language of the opinion:
"`This clause excludes the idea, as I think, that it was acting as the agent of the shipper over the route beyond its line, but implies that it was acting as the agent of that portion of the route (the route belonging to the International Great Northern), and the Cotton Belt therefore acted as agent for the International Great Northern.'
"The opinion of the court in this case, in our judgment, is contrary to the holding of the Court of Civil Appeals in the case of K. C. M. O. Ry. Co. of Texas v. Adams, cited above."
The case having been fully developed and no liability against appellant being shown, I think the motion should be sustained, and the judgment of the trial court reversed, and judgment here rendered for appellant. *Page 228