Gulf, Colorado & Santa Fe Railway Co. v. Dwyer

This is the third appeal in this case. The first is reported in 69 Tex. 707; and the second in 75 Tex. 572 [75 Tex. 572]. The nature of the suit is shown in the former opinions as reported in the volumes cited.

The assignments of error upon this appeal are numerous, but we do not consider it necessary to consider them in detail. Upon the second appeal we held that the act under which the penalty is attempted to be recovered in this case "only applies when the railway company that is sought to be charged in damages has either itself executed the bill of lading or has authorized another company to execute, or has ratified it by a voluntary act on its part." We also held in that opinion, that an acceptance of freight by a railway company from a connecting company, being compulsory under our statutes, could not be deemed a ratification of the bill of lading.

It is complained, that "the court erred in not granting a new trial for the reasons set up in the defendant's fifteenth ground of motion for a new trial, which is as follows: 'The verdict of the jury is contrary to the law and the charge given at the request of the defendant, and without evidence to support it, in this; that the uncontradicted and positive testimony shows that the bill of lading was never authorized by the defendant or ratified by it; that it was issued by a foreign road without the knowledge or consent of defendant, and that defendant had no knowledge of the bill of lading until after the mails arrived at Brenham, and that the road which issued the bill of lading had no authority to contract for or on behalf of the defendant; that defendant received the nails in good faith, paying the $197.50 advance charges, and only demanding the same with its own legitimate charges of $35 added, and did not transport the goods under or by virtue of the bill of lading.' "

We are of opinion that this assignment of error should be sustained. The testimony is somewhat voluminous, and we do not deem it necessary to set it out in detail. The only evidence relied upon to show that the appellant authorized its connecting carrier to execute the bill of lading, or that it was ratified after its execution, is the circumstance that when appellee demanded the carload of nails appellant's agent at Brenham, Texas, offered to deliver it upon payment of the freight specified therein, provided appellee would surrender the bill of lading and execute a receipt to the railway company for the overcharge. This fact is consistent with the theory that the appellant was a party to the original contract; but it is equally consistent with the other theory, that the object of the offer was to maintain the custom of the line of transit by respecting the contract of the connecting carrier and looking to it for reimbursement. The demand for the bill of lading and a receipt for the overcharge tends to show that the latter was the motive which prompted the offer. The evident purpose was to make a reclamation upon the company which executed the bill of lading; and while it may be presumed that the appellant only intended to make a reclamation for a proportionate amount of the overcharge, it is equally fair to presume that it intended to claim the whole. The circumstance therefore proves nothing. The appellant having it in its power to adduce evidence as to the relations between it and its connecting carrier, its failure to do so may have been a circumstance against it. But the appellant did not fail in this particular. Its general freight agent testified in the case very fully, and expressly denied that the company which executed the bill of lading for the transportation over the appellant's line had any authority to do so. There was no evidence to the contrary, except the circumstance above stated, if that can possibly be deemed such.

Now, we do not propose in this case to enter upon the debatable question of the intensity of proof when a penalty is sought to be recovered in a civil action. There is the highest authority for holding that in such cases the plaintiff must prove the facts which justify a recovery beyond a reasonable doubt. Chaffee v. United States, 18 Wall., 516.

The appellee contends, however, that the appellant was not bound to pay the freight charged in the way-bill when it received the car from the connecting line, and that therefore it was liable for the penalty for not delivering the goods upon tender of the freight shown by the bill of lading. But upon full consideration of the question we decided in the former opinion that the statute applied only to carriers who were parties to the bill of lading, either by original contract or by ratification. The case shown by the testimony illustrates the correctness of that ruling. The agent of appellant at the point of connection testified, that when he received the car of nails from the connecting road he had no knowledge of the bill of lading, and that he paid the accrued charges as shown by the way-bill, that being his only guide. The charges having been paid in good faith, was it intended to punish the carrier at the end of the line for refusing to deliver the freight until he was given the bill of lading, together with a statement from the consignee that the goods have been delivered without payment of the overcharge, so that he might reclaim it of the first carrier? It would seem not. If the carrier at the point of destination has either executed the bill of lading or has authorized its execution, he is presumed to know its contents, and he can not shield himself from the penalty of the statute for a refusal to deliver the goods upon tender of the freight as shown by such bill, by claiming that there has been a mistake. But in a case in which the bill of lading has been given without his authority mistakes are likely to occur, and we do not think it was intended to punish the last carrier when he refuses to deliver the goods until he has the means of protecting himself from the consequences of such mistakes. Every man is presumed to know the law, and it would seem that before any one should be punished, either in a criminal or a civil action, for an act claimed to be penal, the offense should be clearly defined, and that any grave doubt as to the intention of the Legislature should be resolved in favor of the defendant.

Counsel for appellee have cited cases to show that a carrier who receives goods from another and pays the charges which have then accrued can only claim to be reimbursed for the just and reasonable charges which were due for the carriage. This rule we have no disposition to gainsay; and it may be that if appellee were suing merely for damages for the detention of his goods or for the recovery of an overcharge he had paid, it would have been incumbent upon the appellant to show that the charges paid at the point of connection were reasonable and proper. We have to deal with the construction of a penal statute, and we think the cases cited not in point. They were ordiriary civil actions.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered March 25, 1892.