
    WATTAM v. INTERNATIONAL & G. N. R. CO.
    (No. 1332.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 22, 1914.
    Rehearing Denied June 11, 1914.)
    Cashiers (§ 86) — Carriage of Freight — Facilities for Unloading — Obligation oe Parties.
    A carrier owes to a shipper the duty to furnish him reasonable facilities for unloading, but the shipper must exercise reasonable diligence in unloading, and the carrier need not permit him to use the car as a storehouse in which to carry on his business as a seller on the payment of demurrage charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 316-322 i Dec. Dig. § 86.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by W. H. Wattam against the International & Great Northern Railroad. Company. From a judgment granting insufficient relief, plaintiff appeals.
    Affirmed.
    Over appellee’s line of railway and connecting lines appellant shipped a carload (600 bushels) of apples from Marionville, Mo., to Bryan, Tex. After the apples were delivered to him at Bryan appellant claimed the right to sell them from the car in lots of from one dozen to a wagonload each, and was proceeding to exercise such a right, when appellee objected to its car, track, and right of way béing used for that purpose. Appellant persisted in making such use of the car, and continued to sell the apples. Appellee thereupon closed and sealed the doors of the car, excluding appellant therefrom, but at the time telling him it would open the doors and permit him to unload the apples whenever he desired to do so. On the day after the appellee closed and sealed the doors of the car appellant opened the same and resumed the business he had before engaged in of selling the apples from it, and during the 14 or 15 days following continued selling the apples, until he disposed of all of them. During this time appellee moved the car from one place to another in its yards, and so interfered with appellant in the use he was making of it. It appeared from the testimony that if appellee had not so moved the oar nor otherwise have interfered with appellant, he could have sold the apples in about five days and at a greater profit than he realized from the sales he made of same. It also appeared from the testimony that he incurred expenses he would not have incurred had appellee not interfered, as it did, with his use of the car and its premises for the purpose of selling the apples. Appellant sought by his suit to recover of ap-pellee $300 as actual damages he had suffered, and $500 as exemplary damages. The trial was before the court without a jury, and resulted in a judgment in appellant’s favor for $1. Appellant was not satisfied with the recovery allowed him, and prosecuted this appeal.
    Zumwalt & Key, of Denton, for appellant. Thompson & Barwise, of Ft. Worth, for ap-pellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   WILLSON, O. J.

(after stating the facts as above). In the absence of a contract whereby it bound itself to do more (and it is not pretended that there was such a contract), the duty appellee owed to appellant was to transport the apples to Bryan and there deliver them to him, furnishing him reasonable facilities for unloading them from the car. It seems from the testimony that appellee discharged this duty. The duty appellant owed appellee was to exercise reasonable diligence in unloading the apples from the car and in removing them from appellee’s premises. It seems from the testimony that appellee failed to discharge this duty, and that if error was committed by the court below it was in awarding appellant a recovery of even the nominal damages adjudged in his favor. We think appellant was mistaken in concluding that because appellee was bound to furnish him a car in which to transport his apples, it also was bound, having furnished him the car, to permit him, on the payment of demur-rage charges of $1 a day, to use it as a storeroom in which to carry on his business as a vender of apples. Appellee was not bound to furnish him a car for such a purpose. Furnishing cars for such a purpose is not within the scope of the business common carriers engage in, and to requirk them to do so might, and probably would, seriously interfere with the discharge by them of duties they owe the public.

The case of Miller v. Ry. Co., 88 Ga. 563, 15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170, was unlike this, in that the question there was as to the right of the railway company to adopt and enforce a reasonable regulation as to the time within which ears might be unloaded by consignees without paying storage charges and to fix a rate to be charged for the use of cars beyond that time, but we think much of the reasoning of the court in disposing of it is'pertinent as an answer to appellant’s contention.

“The law,” said the court in that case, “compels the carrier to receive the goods of the public, and to transport and deliver them within a reasonable time. * * * To do this it is necessary that the moans of transportation shall be under the carrier’s control, and that, after the duty of carriage has been performed, its vehicles shall not be converted into storehouses, at the will of consignees, to remain such indefinitely, and without compensation. If no check could be placed upon such detention, it is plain that the business of transportation would be at the mercy of private interest or caprice, and that carriers, thus hampered in their facilities and unable to see the time or extent to which their vehicles would be diverted from the work of carriage, could not provide properly for the demands of traffic, or perform with dispatch their legitimate function. It would place upon the carrier the burden and expense of supplying numerous vehicles not needed for the hauling of freights, thus requiring it to provide extra facilities, as well as to render extra service, without compensation beyond that received for transportation. It would result in the accumulation of cars on the carrier’s tracks, and the obstruction in a greater or less degree of the movement and unloading of trains. Not only would loss ensue to the carrier, but consignees and shippers in general, and the people at large must suffer seriously from this hindrance to the due and regular course of transportation. In this matter the publio have rights paramount to those of any individual or class of individuals, and the business of the common carrier must be so conducted as to subserve the general interest and convenience.”

We think appellant has no cause to complain of the judgment, and it is affirmed.  