This suit was brought by appellee against appellant to recover damages for the alleged negligent delay in the delivery of a carload of bananas shipped over appellant's railway from Galveston, Tex., for delivery at Beaumont.
Defendant answered to the merits by general denial, pleaded contributory negligence of the plaintiff and his representatives, and the consignee and its representatives, denied that the bill of lading was a through bill of lading, alleging specially that by its terms the liability of the defendant was limited to such injuries to the freight described as might have occurred on its own line and that the defendant transported the goods to Houston, where it delivered the same to another common carrier, who in turn transported the same to Beaumont, the point of destination; that the injuries alleged by plaintiff are shown by his petition to have occurred in the city of Beaumont when they were in the possession of such connecting carrier, viz., Texas New Orleans Railroad Company, and had passed from the possession and control of this defendant.
The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $251.67.
The carload of bananas was delivered to and received by the appellant at Galveston for shipment to Beaumont. It was transported by appellant from Galveston to Houston and turned over to its connecting carrier the Texas New Orleans Railroad Company, by which it was transported to Beaumont and delivered to the consignee. The consignee was not promptly notified of the arrival of the car in Beaumont, and by reason of this the bananas remained in the car until they deteriorated in value in the amount found by the jury. The bill of lading given by the appellant when it received the shipment contains a number of blank spaces, and except in the clauses limiting, or attempting to limit, the liability of the railway, is not very definite in stating the terms of the contract of carriage. The material portions of the bill of lading, as set out in the statement of facts, are as follows:
"Form 1556. "The Galveston, Harrisburg San Antonio Railway Company.
"Straight Bill of Lading — Original — Not Negotiable — Agent's B. L. No. S.
"For Use Only Between Points Within the State of Texas.
"Received of S. Zemurray...... at...... the following packages, contents and values unknown, in apparent good order, except as noted, marked and numbered as per margin, to be transported from...... (must be a station on this line) to...... (must be a station on this *Page 158 line) there to be delivered to consignee, unless destined beyond, and if destined beyond, then the Galveston, Harrisburg San Antonio Railway Company agreed, as agent for the shipper, to tender the shipment to a connecting common carrier, en route to destination. ...................................................................
(Mail address — Not for purposes of delivery.) "Consigned to T. S. Reed Gro. Co.
"Destination Beaumont, Texas, State of ...... County of.......
"Car Initial PFE Car No. 3239."
Here follows description and weight of the contents of the car. Also the following:
"It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and to each party, at any time interested in all or any of said property, that every service to be performed by any carrier shall be subject to all the conditions, whether printed or written, herein contained, and which are agreed to by the shipper and accepted by himself and his assigns.
"Conditions. "Section 1. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, riots or strikes, or the act or default of the shipper or owner, or for differences in the weights or grain, seed or other commodities caused by natural shrinkages or discrepancies in weights, or for any vice or inherent defect in the property shipped.
"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."
"Sec. 5. Property not removed by the party entitled to receive within the time required by law, or the rules and regulations of the Railroad Commission of Texas, after notice of its arrival has been duly sent or given, may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to legal charge as fixed by the Railroad Commission of Texas, and to carrier's responsibility as warehousemen only; or may be at the option of the carrier removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at the owner's risk, and without liability on the part of the carrier and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage."
This shipment was accepted and carried by the Texas New Orleans Railway Company under this bill of lading.
We do not think the trial court erred in holding that these facts show that this shipment was a through shipment in the purview of articles 731 and 732, Vernon's Sayles' Civil Statutes, and appellant was therefore liable to appellee for the damage to such shipment caused by the negligence of its connecting carrier. The car was received by appellant for shipment to and delivery at Beaumont. The bill of lading issued by appellant recites in effect that the contract of shipment thereby evidenced was made by appellant for itself and its connecting carrier, and the contract so made was recognized, acquiesced in, and acted upon by the connecting carrier. These facts being shown, by the express provisions of article 732, above cited, the appellant is liable to appellee for the damage caused by the negligence of its connecting carrier, notwithstanding the stipulations to the contrary in the bill of lading. St. Louis S.W. Ry. Co. v. Grain Co., 186 S.W. 429; Railway Co. v. Turner, 42 Tex. Civ. App. 532, 94 S.W. 216; Ry. Co. v. Kansas City Produce Co., 200 S.W. 254.
We have carefully examined the record and conclude that the evidence is sufficient to sustain the findings of the jury.
None of the assignments presented in appellant's brief show any error which in our opinion requires, or would justify, a reversal of the judgment. It would serve no useful purpose to set out or discuss the assignments in detail; all of them are overruled, and the judgment affirmed.
Affirmed.