
    Texas & Pacific R’y Co. v J. Z. Wheat.
    (No. 2970.)
    April 23, 1884.
    Appeal from Tarrant County.
   Opinion by

Hurt, J.

§ 165. Petition founded on bill of lading. The petition in substance alleged that plaintiff shipped cattle from Memphis, Tennessee, to Port Worth, Texas, over several lines of connecting railroad, one of which was defendant’s line; that said shipment was made “on through bills of lading, and at agreed and through rates for the whole route, the contracts and bills of lading of each of said railroads in regard to the shipment of cattle being recognized and carried out by the others;” that the cattle were damaged by the negligence of defendant, etc. Held, that the petition was founded upon the special contract evidenced by the bill of lading, and was not an action founded on the liability of the carrier at common law.

§ 166. Proof must correspond with allegation. The suit being upon the bill of lading, the plaintiff was not entitled to recover without introducing the same in evidence, or accounting for its non-production, and then establishing its substance as alleged.

§ 167. Common carrier; warehouseman; when their liability attaches. Article 283 of the Revised Statutes declares when the liability of warehousemen ceases, and that of common carriers attaches! Liability as a common carrier does not attach until a bill of lading is given, or until the goods have been delivered to, and received by, the carrier.

Reversed and remanded.  