This was an action for damages, brought by the appellee to recover the penalty prescribed by statute for an overcharge on a carload of wire and staples transported from St. Louis, Missouri, to Meridian, Texas, and for delay and loss of wages of plaintiff's employes and the employment of his teams while waiting for the delivery of said freight, which had been withheld for the alleged overcharge.
The car of wire and staples was delivered to the Missouri Pacific Company at St. Louis for shipment to Meridian, Texas, to the Moroney Hardware Company, and a bill of lading was executed therefor, which was indorsed and transferred to the plaintiff. When delivered, the freight was weighed by the Missouri Pacific Company, and weighed 20, 750 pounds. The traffic rate from St. Louis to Meridian was 56 cents on the 100 pounds, and the charges amounted to $116.20, and were prepaid. The bill of lading was in the usual form, and contained the following:
"Consigned to order Moroney H. Co., at Meridian, Texas.
"Weight and classification subject to correction.
"Marked and numbered on margin as follows: Rates guaranteed to Meridian, Texas. Paid $116.20. List of articles: 185 reels of barbed wire, 3 kegs of staples. Weight * * * Car No. 1210. Mo. Pac."
In course of transit the car was delivered by the Missouri Pacific Company to the defendant at Fort Worth, Texas, and by it carried to Meridian, the place of its destination, where the plaintiff was notified of its arrival. It was way-billed from Fort Worth to Meridian by the defendant's agent at Fort Worth at the weight of 21,800 pounds, with a memorandum showing charges, "Gulf, Colorado Santa Fe, prepaid, $29.00; Gulf, Colorado Santa Fe, unpaid, $5.88." The latter amount is the difference between the computations of the charges at the rate mentioned in the bill of lading upon the different weights, and is the amount claimed by the defendant's agent at Meridian, who refused to deliver the wire to plaintiff unless it was paid. It was that much in excess of the amount mentioned in the bill of lading as having been prepaid, and due on the weight as ascertained at the time the bill of lading was executed. Plaintiff refused to pay the additional charges and demanded the wire, which was withheld for sixteen days and then delivered to him without further payment.
Appellant has set up as a defense to the plaintiff's action, that the shipment was an interstate shipment, and that the State statute under which the penalty is sought to be recovered does not apply to such shipments, and as to them is inoperative and void. This is a question of considerable difficulty, having arisen since the passage of the interstate commerce act by Congress, and not coming within the decision in Railway v. Dwyer, 75 Tex. 572, which arose before that law was *Page 262 passed. But we do not think that a decision of the question is necessary to the disposition of the case.
The bill of lading under which the wire was shipped contained the stipulation that weight was subject to correction, which deprived it of its conclusiveness or finality as to the sum to be paid. In the case of Railway v. Cruse, 83 Tex. 460, the court, holding that in view of this provision in the bill of lading the burden of proof rested on the plaintiff to show by other evidence that an overcharge was made, said: "There was no proof as to the weight of the animals; and if the petition had been sufficient, the court was not authorized to render a judgment in favor of plaintiff, on whom rested the burden of proof, without evidence showing that an overcharge was made, and the bill of lading, in view of the reservation of the right to correct weights and of the acts of the parties, could not be deemed sufficient evidence on this point."
Suing as he does for a penalty, the plaintiff should have averred in his petition that the freight specified in the bill of lading was upon the actual weight of the wire and staples, and the burden of proof rested upon him to show that it was. There is no such averment in the petition, and there is no proof that the freight mentioned in the bill of lading was estimated upon the actual weight. In the absence of such proof the court should not have rendered judgment against the defendant; and upon authority of Railway v. Cruse, supra, we are constrained to reverse the judgment of the court below.
There is sufficient evidence in the record to support the finding of the court complained of in the sixth assignment of error, that the defendant received the freight from the Missouri Pacific Company at Fort Worth as a connecting carrier in order to complete the transportation for its proportionate part of the freight.
Appellant's second and fourth assignments of error are:
"2. The court erred in overruling defendant's first special exception to plaintiff's petition, which exception is as follows, to-wit. 'The defendant excepts to that portion of plaintiff's petition which seeks to recover $250 damages for delay and loss of wages of employes and the occupation of his teams.' Because the petition fails to show that notice was given when the freight was shipped that said damage would result from delay.
"4. The court erred in allowing plaintiff's witness J.C. Foley to testify, over defendant's objection, that plaintiff's teams (two mules and wagon and driver each) made three trips to Meridian for plaintiff's wire; that on one trip there were three teams, and on two trips there were four teams; that each trip consumed a day; that the defendant refused to deliver the freight on each of said trips; that each team was worth $3 per day. Because said damage, if any, can not reasonably be considered as having been within the contemplation of the parties *Page 263 at the time of making the contract of shipment, and plaintiff is not entitled to recover therefor, having given no notice to the railway company that delay would result in such damage to him."
It was not necessary that notice of the probable damages that plaintiff charged in his petition to have resulted from the loss of the wages of employes and the use of his teams should have been given to the defendant when the contract of shipment was made, because a trip to the defendant's depot at Meridian for the wire was reasonably within the contemplation of the parties, and any loss or damage occasioned by a futile trip, if the defendant was at fault in not delivering the wire, would naturally flow from its detention. But we are of the opinion, that if it should be shown that plaintiff is entitled to recover, he should not recover for more than one trip, because on the first trip the bill of lading did not authorize a delivery to him, as it had not been indorsed. One trip would have been necessarily made; and there were only three shown.
We conclude that the judgment of the court below should be reversed and the cause remanded for another trial.
Reversed and remanded.
Adopted March 25, 1892.
A motion for rehearing was refused at the Austin Term. *Page 264
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