Texas & Pacific Railway Co. v. Felker ( 1905 )

Appellee as plaintiff below sued the appellants Texas Pacific Railway Company, St. Louis San Francisco and Texas Railway Company, and the St. Louis San Francisco Railway Company, to recover damages for delay in the transportation and rough handling of a train of cattle from Iatan, Texas, to Henryetta, Indian Territory. The defendants answered by general denial and specially pleaded that the contracts were in writing and that each had limited its liability to its own line of road, and that the cattle were poor and weak and not fit for shipment, and that the damages, if any, to the cattle grew out of their weak and bad condition rather than any negligence upon the part of defendants. A trial resulted in a verdict and judgment against each of the defendants, from which they have appealed.

The envelope containing the depositions of the witnesses Smith and Warner bore the following endorsement: "Received this package on the 4th day of November, 1904, from the hands of E. T. McDowell, the officer before whom they were taken, and forwarded the same on the 4th day of November, 1904, by due course of mail as directed. R. H. Jenness, P. M., per Shick, postmaster at Okmulgee, Indian Territory." A motion was duly made to quash the depositions upon the ground that the postmaster's receipt was not in compliance with article 2286 of the Revised Statutes, and for the further reason that the officer before whom the answers were made had not written his name across the seal as required by article 2284 of the statutes. The only proposition submitted under the assignment calling in review the action of the court in refusing to quash the depositions, presents the sole question of the failure of the notary to write his name across the seal of the envelope, and we would be authorized to consider no other question. But we do not think either objection is well taken; the receipt quoted purports upon its face to be the "postmaster's" receipt within the meaning of the statute. The notary's name endorsed upon the envelope, while it does not extend literally across the edge of the lap or cover forming the seal, yet does extend across and over that portion of the cover which contains the mucilage forming the seal and is therefore, we think, literally "across the seal" as required by statute.

Upon the trial a number of witnesses were asked "if from their experience in handling cattle they could tell whether or not the condition of the cattle at the time they arrived at Henryetta, Indian Territory, was brought about by improper transportation and handling the cars or from other causes," and having answered the question in the affirmative were then asked "what was the cause of the bad condition of the cattle on arrival at Henryetta," to which they answered that "it was due to improper transportation and handling on the cars and from being detained too long on the cars and being jerked and switched about improperly." Appellants duly objected to this testimony for the reasons that it was not a proper question for expert testimony, and that the question and answer called for a conclusion of the witness, and that the facts sought to be proved by the question and answer were exclusively for the jury. The objections were overruled and the answers of the witnesses admitted. In this ruling there was error; the objections were well taken and should have been sustained. It is proper in such case to permit the witness to testify as to the appearance and condition of the cattle and, if qualified, to further express his opinion as to whether or not rough handling, delays and the like are calculated to produce such effects; but to allow a witness to testify that the appearance of the cattle indicates improper transportation and handling on the cars is tantamount to allowing him to testify that the carrier was negligent — the question of negligence being always one for the jury. We believe no case can be cited where it is held that a witness may testify that an act does or does not constitute negligence.

There was no error in admitting the testimony of witnesses Warner and Smith as to the market value of the cattle at their destination if they had been shipped with reasonable dispatch and care, even though they had not seen the cattle prior to shipment. This circumstance might properly affect the weight of the testimony, but hardly its admissibility.

The testimony of the witness Thompson complained of in the Texas Pacific Railway Company's fifth and sixth assignments, if erroneously admitted, would not work a reversal of the case, since the same testimony was admitted from another source without objection. But in view of another trial we suggest that it was improper to permit the witness to testify that when the cattle were delivered to the Texas Pacific at Iatan he requested and demanded of the agent that he bill the cattle through to their destination in the Indian Territory and that the agent refused to do so stating that he could only bill the cattle to Fort Worth, Texas. Clearly the appellee had no right to insist that the cattle be billed through to the Indian Territory, and the refusal of the Texas Pacific to do so is not a proper subject for consideration by the jury. Such testimony could only have an evil effect as indicating an unwillingness upon the part of the company to accommodate the shipper.

We think it is also improper to permit the witness to testify that at the time he delivered the cattle at Iatan he demanded of the agent that they be unloaded in the Texas Pacific stock pens at Fort Worth rather than at the Union Stock Yards, since all the evidence indicates that the cattle were destined to a point beyond Fort Worth and were to be delivered by the Texas Pacific to its connecting carrier the St. Louis, San Francisco Texas Railway Company, and the only place at which this delivery could be made was the Union Stock Yards where the cattle were actually unloaded. Of course if the shipment had been purely a local shipment to Fort Worth, the shipper might have the right to demand that the delivery be made in the yards of the Texas Pacific Company. But he would have no right to insist upon such delivery and at the same time further insist that the Texas Pacific Company also deliver the cattle to its connecting carrier when it could not do so from its own stock yards.

The Union Stock Yards at Fort Worth being, according to the evidence, the pens used jointly by the appellants, it follows that they were the pens of the Texas Pacific for delivery of cattle in such shipments as this, and it was therefore not error to permit evidence to the effect that when the cattle were placed there, the pens were crowded to such an extent that the cattle were unable to eat or drink and were thereby seriously injured. The Texas Pacific Company would be liable for the damages up to the time the cattle were delivered or tendered to the proper connection, at which time the latter's liability would attach.

The fourth section of the court's charge which is as follows, is also erroneous: "If you believe from the evidence in this case that before the arrival of the cattle in question at Fort Worth station, the consignee requested that said cattle be delivered to him there in the Texas Pacific pens at that place, but the said Texas Pacific Railway Company refused so to do and carried them five miles distance from the place to which they were destined and placed them in the Union Stock Yards pens at North Fort Worth, Texas, such placing in said last named pens would not be a delivery according to said contract, and said Texas Pacific Railway Company would be liable for whatever damages might have resulted to said cattle (if anything) from the time of such deviation from the destination named in the contract, and which may have resulted (if anything) by placing them in the Union Stock Yards pens aforesaid, and until the acceptance of said cattle by the next connecting carrier, the Red River, Texas Southern Railway Company." As already stated, the Texas Pacific Company could not comply with its obligation to deliver to its connecting carrier except by a delivery at the Union Stock Yards, and it is highly improper for the court to instruct the jury that this delivery would constitute a violation of its contract. The Texas Pacific Company would not be liable for all the damages that might have resulted to said cattle by their delivery in the Union Stock Yards and prior to their acceptance by the connecting carrier, as the jury were told by the court, but at most could only be held liable for such damages as were occasioned by its negligence in unloading them in the crowded or otherwise improper pens, or delaying unnecessarily to tender them to the connecting carrier, and only then of course where there is proper predicate in the pleading. We hardly think, as suggested by counsel for the Texas Pacific, that the duty devolved upon the appellee to avoid the consequences growing out of improper conditions at the pens after the delivery of the cattle there. This was the place selected by the company to make the delivery and it is under the obligation of exercising ordinary care to maintain it in a suitable condition for such purposes.

This disposes of all the issues raised by the assignments of the Texas Pacific Railway Company and most of those raised by the other appellants. With respect to the sixth assignment of error of the St. Louis San Francisco Railway with reference to the testimony of Thompson detailing a conversation with J. L. Pennington, the companies' live stock agent, we find no error. There is ample testimony in the record to show that it was at least within the scope of the authority of Pennington to transact the business with appellee in which he was engaged when he made the statements reproduced by the witness in the trial of this case. Pecos V. R. R. Co. v. Latham, 13 Texas Ct. Rep., 662; Missouri, K. T. Ry. Co. v. Kyser, 87 S.W. Rep., 389; International G. N. R. R. Co. v. True, 57 S.W. Rep., 977.)

The court's charge given at the instance of appellee that "A rush of business is no defense for failure to transport freight or cattle with reasonable care, diligence and dispatch," is the law as we understand it. (Gulf, C. S. F. Ry. Co. v. McCorquodale, 71 Tex. 41; Cross v. McFaden, 20 S.W. Rep., 846; International G. N. R. R. Co. v. Anderson, 21 S.W. Rep., 691; International G. N. R. R. Co. v. Lewis, 23 S.W. Rep., 323; Gulf, C. S. F. Ry. Co. v. Hume, 24 S.W. Rep., 915.) Nothing but the act of God or othervis major could excuse the carrier from a compliance with the terms of a contract entered into. The rule announced in Texas and Pacific Railway Company v. Nelson, 86 S.W. Rep., 616, a case of negligent failure to furnish cars, has no application to this case.

The errors discussed affecting, as they do, all of the appellants, the judgment of the District Court is reversed and the cause remanded for another trial.

Reversed and remanded.