
    DAVIES v. TEXAS CENT. R. CO. et al.
    (Court of Civil Appeals of Texas.
    Nov. 9, 1910.
    Rehearing Denied Dec. 10, 1910.)
    1. Carriers (§ 183) — Failure to Deliver Freight — Actions—Parties.
    A receiver of a connecting carrier appointed more than two years after the delivery of freight to the initial carrier for transportation is •not a proper party to the action for the loss of the freight, in the absence of any allegation that the goods or any part thereof came into his possession, or into the possession of the connecting carrier, after his appointment.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 183.]
    2. Limitation op Actions (§ 13) — Loss op Freight — Actions—Limitations.
    Even though the failure of a carrier to deliver freight received for transportation gave the shipper a cause of action for trespass to his property, or an action for the conversion of his property within the two years’ statute of limitations for such actions (Rev. St. 1895, art. 8354, §§ 1, 2), limitations do not begin, to run so long as- the carrier promises to search for the goods and deliver them, if found, and if not found, to pay' the damages sustained.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58; Dec. Dig. § 13.]
    3. Limitation op Actions (§ 32) — Statutes —Construction—“Trespass.”
    The word “trespass,” in Rev. 'St. 1895, art. 3354, § 1, declaring, that an action for trespass to property must be brought within two years, includes all tortious acts amounting to a transgression of the rights of another as to his property, but there must be some act done; and a mere failure to perform an act which one owes to another is insufficient, and the failure of a carrier to deliver freight received for" transportation is not a trespass.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 143-145; Dee. Dig. § 32.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 7088-7093; vol. 8, p. 7820.]
    4. Carriers (§ 91)— Conversion — Delay in Delivery op Freight.
    Failure of delivery of freight by a carrier safely keeping the same does not amount to a conversion, but to constitute a conversion there must be a demand and a refusal to deliver.
    [Ed. Note. — For other cases, see Carriers! Cent. Dig. §§ 338-342; Dec. Dig. § 91.]
    5. Limitation op Actions (§ 32) — Carriage of Freight^-Actions — Limitations.
    A petition, in an action against an initial and connecting carriers for failure to deliver freight, which' alleges that in November, 1905, a contract of shipment was entered into between the shipper and the connecting carrier, that the freight had not been delivered at the commencement of the action in September, 1908, that up to January 1, 1907, the carriers promised to search for the freight and deliver the same, if found, and, if not, to pay damages, does not allege a conversion prior to January 1, 1907, so that the action is not shown to be barred by the two years’ statute of limitations (Rev. St. 1895, art. 3354, § 2).
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 143-145; Dec. Dig. § 32.]
    6. Limitation of Actions (§ 24) — Cabp.eiage of Freight — “Action Founded on Contract IN WRITING” — LIMITATIONS.
    An action against a carrier for breach of contract to transport freight, evidenced by a bill of lading signed by the carrier and shipper and stipulating for the transportation of freight on terms specified, is an “action on contract in writing” within Rev. 'St. 1895, art. 3356, § 1, declaring that actions for debt founded on any contrncD in writing may be brought in four years.
    [Ed. Note. — For other, cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dec. Dig. § 24.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 145, 146.]
    Appeal from District Court, McLennan County; Marshall Surratt, Judge.
    Action by Robert Davies, surviving partner of Thomas Taylor & Co. against the Texas Central Railroad Company and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    John W. Davis, for appellant. J. A. Kib-ler, for appellees.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JENKINS, J.

Appellant filed this suit on September 3, 1908, as surviving partner of Thomas Taylor & Co., against the Texas Central Railroad Company, the International & Great Northern Railroad Company, and T. J. Freeman, as receiver of said last-mentioned company, alleging that on November 23, 1905, said Taylor & Co. entered into a written contract with the Texas Central Railroad Company for the transportation of 235 bales of cotton from Hico, Tex., to Galveston; Tex., and the failure to deliver ■ 12 bales of said cotton. By proper allegations it is shown that the International & Great Northern Railroad Company 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 by 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 part thereof, ever came to his possession or into the possession of said International & Great Northern Railroad Company after that date.

As regards the statutes of limitation, appellant does not charge either of the appel-lees with doing any injury to his property or with detaining or converting his property, 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 ap-pellees, or either of them, to find said cotton and deliver the same prior to February 2, 1908, at which time he alleges that the Texas Central Railroad Company 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 Texas Central Railroad Company and by Thomas Taylor & Co., having indorsed 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 toe appellant a cause of “action for trespass for injury done to his estate or property,” or an “action for detaining his personal property and converting the same to their own use” (Rev. St. 1895, art. 8354, §§ 1, 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 intentionally 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. Rev. St: art. 3354.

4. Is the failure of appellees to transport and deliver appellant’s cotton, as alleged by him, a “trespass” up,on 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 Tex. 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, 81 Tex. 26, 16 S. W. 646; Austin v. Cameron & Co., 83 Tex. 353, 18 S. W. 437. “It must be an act committed, as contradistinguished from an act omitted.” Connor v. Saunders, 81 Tex. 637, 17 S. W. 237. “Trespass to personal property is an active aggression on a right of property.” Weller v. Hanauer (C. C.) 95 Fed. 243. Where, through the negligence of toe employs 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. Ry. Co., 48 La. Ann. 322, 19 South. 333.

5. Do the acts of appellees, as alleged in .appellant’s petition, constitute a “conversion” prior to January 1, 1967? 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; Railway Co. v. Tyler Coffin Co., 81 S. W. 827. The possession must' be adverse. Water Co. v. Kizer, 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.” Navigation Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; Moore on Carriers, 211-213. A conversion implies a wrongful act; a mere nondelivery will not constitute a conversion. Moore on Carriers, 216-217.

6. The action of the court in sustaining ap-pellees’ 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 Railway Co. v. Clemmons, 19 Tex. 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, to wit, $1,000, 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. Telegraph Co., 6 Tex. Civ. App. 619, 26 S. W. 136. 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 Railway Co. v. Roemer, 1 Tex. 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 Railway Co. v. McAnulty, 26 S. W. 417, no mention is made of a bill of lading, but acts of violence against plaintiff’s property are alleged, and it is alleged that such acts were committed willfully and recklessly, and with an evil intent. The decision in that case, as well as that in the Roemer Case, supra, can have no application to the facts as alleged in this case.

7. But if the learned court that decided the Clemmons 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 ease, 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 parol or implied, contract. “A bill of lading is a contract entered into by the parties and is equally binding on both.” Schloss v. Railway Co., 85 Tex. 602, 22 S. W. 1014. 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 within which actions for breach of contract may be brought.” 25 Cyc. p. 1033, § 3. This statement of the law is supported by reason and by authority. Millington v. Railway Co., 2 Willson, Civ. Cas. Ct. App. § 171; Railway Co. v. Watson, 1 White & W. Civ. Cas. Ct. App. § 813; Robinson v. Varnell, 16 Tex. 389; Trube v. Montgomery, 7 Tex. Civ. App. 557, 27 S. W. 19; O’Conner v. Koch, 29 S. W. 401.

8. We hold that appellant’s cause of action, as set forth in his petition, is governed by section 1, art. 3356, Rev. St. 1895, 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 between 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.  