JENKINS, Associate Justice.
Appellant filed this suit on September 3, 1908, as surviving partner of Thomas Taylor & Co., against the T. C. R. R. Co., the I. & G. N. R. R. Co., and T. J. Freeman, as receiver of said last mentioned company, alleging that on November 23, 1905, said Taylor & Company entered into a written contract with the T. C. R. R. Co. for the transportation of 235 bales of cotton from Hico, Texas, to Galveston, Texas, and the failure to deliver 12 bales of said cotton. By proper allegations it is shown that the I. & G. N. R. R. Co. is the connecting carrier, and that T. J. Freeman is the receiver of said last mentioned road.
Freeman excepted to said petition-as not showing that he was either a necessary or proper party, which exception was sustained by the court.
All of the defendants excepted to the petition as showing that plaintiff’s cause of action was barred bv the two years statute of limitations. These exceptions were also sustained.
As touching the liability of the receiver, it is alleged that said receiver was appointed "in February, 1908, and it is not alleged that said cotton, or any party thereof, ever came into his possession or' into the possession of said I. & G. N. Ry. Co. after that date.
As regards the statutes of limitation, appellant does not charge either of the appellees with doing any injury to his property or with detaining
or converting his propert}', unless the charge of failure to transport and deliver said cotton in accordance with the terms of the written contract, constitutes such charge; he does not charge either of them with failure to discharge any duty which they owed as common carriers; he does not allege any demand for his cotton or for pay therefor; he does not allege anything which would indicate a refusal by appellees or either of them, to find said cotton and deliver the same prior to February 2, 1908, at which time he alleges that the T. C. B. B. Co. said they would not further consider the matter of finding and delivering said cotton, or of paying for the same if it had lost it, unless the allegations amount to a charge of conversion on January 1, 1907; he does not allege that said cotton is now or has ever been lost. He simply alleges the written contract and the breach thereof by the failure to deliver said 12 bales of cotton, to his damage $874.50, which he alleges to be the value of the same, and sues for the recovery of said cotton or its value. In regard to said written contract, he alleges that the same is what is commonly called a bill of lading; that same was in writing, and was signed by the T. C. B. B. Co. and by Thomas Taylor & Co. having endorsed thereon the following: “Terms and conditions of this bill of-lading are understood and accepted” (signed) Thos. Taylor & Co. It is alleged that had said cotton been transported in reasonable time, it should have reached Galveston during the months of January or February, 1906.
Appellant further alleges that it has been the universal custom between the shippers of cotton in Texas and carriers of the same, when there has been a failure to promptly deliver cotton, that such failure should be made known to the carrier, or carriers, and that they be given a reasonable time to find such cotton, if they can do so, and if not, where the same has been carried over two or more lines, to ascertain which of said lines is responsible for the loss of such cotton, and for the carrier in fault to pay for the same; that this custom was known to appellees and acted upon by them in this: That appellant entered into correspondence with appellees in reference to said cotton, and that they promised him repeatedly in writing up to January 1, 1907, that they would take up said matter and see if said cotton could be found, and if not found, to pay appellant his reasonable damages for the breach of the contract of shipment.
1. We hold that the court did not err in holding that T. J. Freeman was not shown by the allegations of appellant’s petition to be either a necessary or proper party to this suit.
2. We hold that if the failure to deliver said cotton within a reasonable time gave the appellant a cause of “action for trespass for injury done to his estate or propertjr,” or an “action for detaining his personal property and converting the same to their own use” (Bey. Stats., art. 3354, sees. 1 and 2), still the statute of limitations did not run under the allegations of appellant’s petition prior to January 1, 1907, if indeed it ran prior to February 3, 1908. Appellees may in fact have converted appellant’s cotton on January 1, 1906, or prior thereto, but if they in
tentionally concealed such fact from appellant, and led him to believe otherwise, they will be estopped from asserting such conversion until such fact became known to appellant; and he will be excused from the exercise of diligence to ascertain such fact as long as they lulled him into fancied security by their promise to search for said cotton and deliver the same to him. It is an ancient maxim of the law that no one will be allowed to take advantage of his own wrong.
3. If the holding of the trial court that appellant’s cause of action as set forth in his petition was barred by the two years statute of limitation can be sustained, it must be .upon the theory that his cause of action was either “an action of trespass for injury done to the estate or property of another,” or .“for detaining the personal property of another and converting such personal property to one’s own use.” No other provision of the two years statute can possibly apply to the facts as alleged herein. (Bey. Stats., art. 3354.)
4. Is the failure of appellees to transport and deliver appellant’s cotton, as alleged by him, a “trespass” upon his property? We concede that “trespass,” as used in this statute, is not to be given that restricted or technical meaning which implies the use of force or violence, but is to be given that broader meaning which includes all tortious acts; “every act done which amounts to a transgression of the rights of another as to his person or property.” Bear Bros. & Hirsh v. Marx & Kempner, 63 Texas, 302. Still, in order to constitute a trespass, there must be some
act
done, and not the mere failure to perform an act which one in duty owes to another. Trespass does not arise “from the mere omission to do a duty.” Ricker, Lee & Co. v. Shoemaker, 83 Texas, 26; Austin v. Cameron & Co., 83 Texas, 353. “It must be an act committed, as contradistinguished from an act omitted.” Connor v. Saunders, 81 Texas, 637, 17 S. W., 237. “Trespass to personal property is an active aggression on a right of property.” Weller v. Hanover, 95 Fed., 243. Where through the negligence of the employes of a railroad company a mule was run over and killed, this was trespass; where through such negligence goods were left exposed to the weather, and suffered damage, this was not trespass. In the one instance, through negligence an act was committed; in the other instance, through negligence, an act was omitted which should have been performed. Castille v. Caffery C. R. & R. Co., 19 So., 333, 48 La. Ann., 322.
5. Do the acts of appellees, as alleged in appellant's petition, constitute a “conversion” prior to January 1, 1907? We think not. No direct charge of conversion is made, nor in our opinion is there any allegation that is tantamount to a charge of conversion.
Free access — add to your briefcase to read the full text and ask questions with AI
JENKINS, Associate Justice.
Appellant filed this suit on September 3, 1908, as surviving partner of Thomas Taylor & Co., against the T. C. R. R. Co., the I. & G. N. R. R. Co., and T. J. Freeman, as receiver of said last mentioned company, alleging that on November 23, 1905, said Taylor & Company entered into a written contract with the T. C. R. R. Co. for the transportation of 235 bales of cotton from Hico, Texas, to Galveston, Texas, and the failure to deliver 12 bales of said cotton. By proper allegations it is shown that the I. & G. N. R. R. Co. is the connecting carrier, and that T. J. Freeman is the receiver of said last mentioned road.
Freeman excepted to said petition-as not showing that he was either a necessary or proper party, which exception was sustained by the court.
All of the defendants excepted to the petition as showing that plaintiff’s cause of action was barred bv the two years statute of limitations. These exceptions were also sustained.
As touching the liability of the receiver, it is alleged that said receiver was appointed "in February, 1908, and it is not alleged that said cotton, or any party thereof, ever came into his possession or' into the possession of said I. & G. N. Ry. Co. after that date.
As regards the statutes of limitation, appellant does not charge either of the appellees with doing any injury to his property or with detaining
or converting his propert}', unless the charge of failure to transport and deliver said cotton in accordance with the terms of the written contract, constitutes such charge; he does not charge either of them with failure to discharge any duty which they owed as common carriers; he does not allege any demand for his cotton or for pay therefor; he does not allege anything which would indicate a refusal by appellees or either of them, to find said cotton and deliver the same prior to February 2, 1908, at which time he alleges that the T. C. B. B. Co. said they would not further consider the matter of finding and delivering said cotton, or of paying for the same if it had lost it, unless the allegations amount to a charge of conversion on January 1, 1907; he does not allege that said cotton is now or has ever been lost. He simply alleges the written contract and the breach thereof by the failure to deliver said 12 bales of cotton, to his damage $874.50, which he alleges to be the value of the same, and sues for the recovery of said cotton or its value. In regard to said written contract, he alleges that the same is what is commonly called a bill of lading; that same was in writing, and was signed by the T. C. B. B. Co. and by Thomas Taylor & Co. having endorsed thereon the following: “Terms and conditions of this bill of-lading are understood and accepted” (signed) Thos. Taylor & Co. It is alleged that had said cotton been transported in reasonable time, it should have reached Galveston during the months of January or February, 1906.
Appellant further alleges that it has been the universal custom between the shippers of cotton in Texas and carriers of the same, when there has been a failure to promptly deliver cotton, that such failure should be made known to the carrier, or carriers, and that they be given a reasonable time to find such cotton, if they can do so, and if not, where the same has been carried over two or more lines, to ascertain which of said lines is responsible for the loss of such cotton, and for the carrier in fault to pay for the same; that this custom was known to appellees and acted upon by them in this: That appellant entered into correspondence with appellees in reference to said cotton, and that they promised him repeatedly in writing up to January 1, 1907, that they would take up said matter and see if said cotton could be found, and if not found, to pay appellant his reasonable damages for the breach of the contract of shipment.
1. We hold that the court did not err in holding that T. J. Freeman was not shown by the allegations of appellant’s petition to be either a necessary or proper party to this suit.
2. We hold that if the failure to deliver said cotton within a reasonable time gave the appellant a cause of “action for trespass for injury done to his estate or propertjr,” or an “action for detaining his personal property and converting the same to their own use” (Bey. Stats., art. 3354, sees. 1 and 2), still the statute of limitations did not run under the allegations of appellant’s petition prior to January 1, 1907, if indeed it ran prior to February 3, 1908. Appellees may in fact have converted appellant’s cotton on January 1, 1906, or prior thereto, but if they in
tentionally concealed such fact from appellant, and led him to believe otherwise, they will be estopped from asserting such conversion until such fact became known to appellant; and he will be excused from the exercise of diligence to ascertain such fact as long as they lulled him into fancied security by their promise to search for said cotton and deliver the same to him. It is an ancient maxim of the law that no one will be allowed to take advantage of his own wrong.
3. If the holding of the trial court that appellant’s cause of action as set forth in his petition was barred by the two years statute of limitation can be sustained, it must be .upon the theory that his cause of action was either “an action of trespass for injury done to the estate or property of another,” or .“for detaining the personal property of another and converting such personal property to one’s own use.” No other provision of the two years statute can possibly apply to the facts as alleged herein. (Bey. Stats., art. 3354.)
4. Is the failure of appellees to transport and deliver appellant’s cotton, as alleged by him, a “trespass” upon his property? We concede that “trespass,” as used in this statute, is not to be given that restricted or technical meaning which implies the use of force or violence, but is to be given that broader meaning which includes all tortious acts; “every act done which amounts to a transgression of the rights of another as to his person or property.” Bear Bros. & Hirsh v. Marx & Kempner, 63 Texas, 302. Still, in order to constitute a trespass, there must be some
act
done, and not the mere failure to perform an act which one in duty owes to another. Trespass does not arise “from the mere omission to do a duty.” Ricker, Lee & Co. v. Shoemaker, 83 Texas, 26; Austin v. Cameron & Co., 83 Texas, 353. “It must be an act committed, as contradistinguished from an act omitted.” Connor v. Saunders, 81 Texas, 637, 17 S. W., 237. “Trespass to personal property is an active aggression on a right of property.” Weller v. Hanover, 95 Fed., 243. Where through the negligence of the employes of a railroad company a mule was run over and killed, this was trespass; where through such negligence goods were left exposed to the weather, and suffered damage, this was not trespass. In the one instance, through negligence an act was committed; in the other instance, through negligence, an act was omitted which should have been performed. Castille v. Caffery C. R. & R. Co., 19 So., 333, 48 La. Ann., 322.
5. Do the acts of appellees, as alleged in appellant's petition, constitute a “conversion” prior to January 1, 1907? We think not. No direct charge of conversion is made, nor in our opinion is there any allegation that is tantamount to a charge of conversion. A very long delay in the delivery of the cotton is shown; but no delay in delivering, so long as the carrier safely keeps the property, will amount to a conversion; but under such circumstances, there must be a demand and a refusal to deliver, in order to constitute a conversion. Moore on Carriers, 214; St. Louis S. W. Ry. Co. v. Tyler Coffin Co., 81 S. W., 827. The possession must be adverse. Texarkana Water Co. v. Kiser, 63 S. W.,
913. “A carrier of goods is a bailee,” Moore on Carriers, 2. “To constitute a conversion of property by a bailee, there must be such an intention of deviation from the contract as would be tantamount to an assertion of right or dominion over the property, inconsistent with the bailor’s right of ownership.” Direct Navigation Co. v. Davidson, 32 Texas Civ. App., 492; Moore on Carriers, 211-213. A conversion implies a wrongful act; a mere non-delivery will not constitute a conversion. Moore on Carriers, 216-217.
6. The action of the court in sustaining appellees’ exception, and thereby holding that appellant’s cause of action was subject to the two years statute of limitation, was doubtless based on the case of Galveston, H. & S. A. Ry. Co. v. Clemmons, 19 Texas Civ. App., 452, 47 S. W., 731. The conclusion reached in that case that plaintiff’s cause of action was barred by the statute of two years may have been correct under the pleadings therein; it certainly was as to the major portion of the alleged cause of action, towit, $1000, for mental suffering. Mental suffering must be classed as an injury to the person, and consequently falls under the ban of the two years statute of limitation. Martin v. Western U. Tel. Co., 6 Texas Civ. App., 619, 26 S. W., 137. It may be that under the allegations in the Coleman case, the contract of shipment was set-out, not as the basis of plaintiff’s cause of action, but only as matter of inducement.
In the case of Galveston, H.
&
S. A. Ry. Co. v. Roemer, 1 Texas Civ. App., 191, 20 S. W., 843, cited' in the Coleman case, the plaintiff alleged the purchase of a ticket by him, which is evidence of a contract for carriage of a passenger. But Chief Justice Fisher, referring to this allegation, says that the contract mentioned in the pleadings is mere matter of inducement to show the tortious act of the railway company, and hence the action was .one founded on tort, and not on contract. ‘ In Ft. Worth & D. C. Ry. Co. v. McAnulty, 7 Texas Civ. App., 321, 26 S. W., 417, no mention is made of a bill of sale, but acts of violence against plaintiff’s property are alleged, and it is alleged that such acts were committed wilfully and recklessly, and with an .evil intent. The decision in that case, as well as that in the Boemer ease, supra, can have no application to the facts as alleged in this case.
7. But if the learned court that decided the Clemons case, supra, meant to assert that- a suit- against a carrier for failure to deliver goods is, in all cases, necessarily barred by the two years statute of limitations, we beg to dissent from such view of the law. A bill of lading may or may not impose -some duty which does not arise under the common law. But whether it does-or does not in any particular case, when the parties thereto reduce the implied contract to writing, it becomes a written contract and supersedes the implied contract which otherwise would have existed from the acts of the parties, and a breach thereof is a breach of a written and not of a paroi or implied contract. “A bill of lading is a contract entered into by the parties and is equally binding on both.” Schloss v. Atchison, T. & S. F. Ry. Co., 85 Texas, 602. Being a written
contract, the four years statute will govern. In Cyc., which we find usually correct, the statement is made without qualification: ‘Viewed with reference to the statute of limitations, an action against a carrier for injury resulting from a breach of contract for safe carriage, is one of contract and not of tort, and is therefore governed by the statute fixing the period Avithin which actions for breach of contract may be brought.”
25
Cyc., p. 1033, sec. 3. This statement of law is supported by reason and by authority. Millington v. Texas & P. Ry. Co.,
2
App. C. C. (Willson), sec. 176; Galveston, H.
&
S. A. Ry. Co. v. Watson, 1 W. & W., sec. 815; Robinson v. Varnell, 16 Texas, 389; Trube v. Montgomery, 7 Texas Civ. App., 557, 27 S. W., 20; O’Connor v. Koch, 9 Texas Civ. App., 586, 29 S. W., 401.
7. We hold that appellant’s cause of action, as set forth in his petition, is governed by sec. 1, art. 3356, Rev. Stats., which declares that “actions for debt, where the indebtedness is evidenced by or founded upon any contract in writing,” may be brought in four years. Robinson v. Varnell, supra, was a suit for the hire of a slave and for the value of said slave, based upon a written contract which provided that said slave should be returned at the expiration of the term of hiring. The court speaking through Judge Wheeler, said: “It is admitted that the action is founded on a contract in writing, but it is insisted that the limitation of four years does not apply, because it is not an action for debt.” After a full discussion, the whole matter is summed up in the following language: “The more reasonable construction, and that which best harmonizes- with the general provisions and policy of the statute is, we think, to consider the terms ‘action of debt grounded on any contract in writing’ as including all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction betAveen debt and damages.”
For the error committed in sustaining the plea of two years statute of limitations, this cause is reversed and remanded.
Reversed and remanded.