This is an action by appellees against the railway company to recover the value of a carload of wheat, shipped by appellees over appellant's road from the town of Lometa, in Lampasas County, to the city of Galveston, which, it was alleged, by reason of the negligence of the defendant, was never delivered to the appellees or the consignee at the place of destination. Appellees recovered the full value of the carload of wheat.
The testimony shows that there was a few days delay in transporting the wheat to Galveston and in keeping the same by the carrier at that point before the disastrous storm that occurred there on September 7, 1900, by which most of the wheat in the car was destroyed. After the storm a part of the wheat in the car was recovered, and it was retained in possession of the railway company for several months without being accounted for and delivered to the appellees. Plaintiffs' cause of action is in effect one of conversion of the entire carload of wheat; but it does not appear from the facts that such an unreasonable length of time had elapsed from the time that the wheat should have arrived before the occurrence of the storm by which it was partially destroyed as would authorize the conclusion that such delay amounted to a conversion. A mere delay of a carrier in delivering the shipment is not usually held tantamount to a conversion of the property. Bolling v. Kirby, 24 Am. St. Rep., 793, and notes thereto on pp. 108, 815, 816. And if the property in the meantime is destroyed by the act of God, the carrier will not be held liable. This principle is recognized in the recent case of Railroad v. Bergman, 64 Southwestern Reporter, 999, in which it was also held that the storm in question was of such an unprecedented character that it could not have been anticipated and guarded against by the exercise of the utmost diligence, and we think that case is decisive of the questions presented in this case under appellant's assignments of errors, except as to that portion of the wheat which was, after the storm, recovered by the appellant. We think the conduct of appellant relating to the wheat that was afterwards recovered would make it liable for its value. The delay in accounting for it and restoring it to the parties that were entitled to it was unreasonable, and the trial court, under the facts stated, would be authorized to render judgment against the railroad for the value of the wheat so recovered.
For the reasons stated, the judgment will be reversed and the cause remanded.
Reversed and remanded. *Page 231
OPINION ON REHEARING.