Gulf, Colorado & Santa Fe Railway Co. v. Wilson , 7 Tex. Civ. App. 128 ( 1894 )

This is a suit by the appellee to recover damages to a shipment of stock. It is alleged in the petition that the stock were shipped from Lampasas to East St. Louis, the plaintiffs alleging that the defendant and other carriers en route to East St. Louis are partners in the business of carrying freight for hire, received on one of their lines and carried over the other, and were partners in the shipment in question, and that the companies other than the defendant are nonresidents of the State.

The defendant, by supplemental answer, denied that the said connecting lines of railway, over which the plaintiffs' cattle were transported, after leaving the defendant's line of railway, were either its agents or partners, and further specially denied that any damage occurred to plaintiffs' stock while being transported over defendant's line of railway. That plaintiffs shipped their stock under a written contract with the defendant, in which it was expressly agreed between the plaintiffs and the defendant that the liability of the defendant was limited to any damage that might occur to said cattle on its line of railway; that the said written contract was in the hands of the plaintiffs, and they were notified to produce the same on the trial of the cause.

There were no exceptions, general or special, filed to this supplemental answer.

The cause was tried before the court, without a jury, and judgment rendered for the appellee for $864.66.

The court, in its conclusions of law and fact, held, that because the allegations of partnership had not been denied under oath, the allegations to that effect in the petition must be held true, and that the defendant was liable for the acts of its connecting lines, notwithstanding the stipulation in the contract to the contrary.

The written contract provided that the defendant would transport five carloads of cattle from Lampasas, Texas, on defendant's road, to Paris, on said road, and there deliver the same to the St. Louis San Francisco Railway Company, to be transported to the National Stock Yards, East St. Louis. The contract, among other things, expressly provides, "That defendant undertakes to transport said cattle with reasonable care and dispatch from Lampasas, Texas, to the end of its line at Paris, Texas, and by it to be delivered at Paris to its connecting line, the Frisco line, by it to be transported to East St. Louis;" and said contract only engages that defendant shall transport said cattle from Lampasas to Paris, Texas. Said contract also provides expressly, that defendant is only to be held liable to plaintiffs for such damage to said cattle as might or should accrue while being transported over its own line of railway, and should not be held liable for any damage that should accrue thereto after their delivery to any other line of railway in their transportation from Paris to East St. Louis, Ill.

The testimony of the plaintiffs' witnesses shows that there was some delay on the defendant's railway, but they do not undertake to show how much, if any, damage, was caused by such delay. Delays from bad treatment of the cattle, and detention of the same, are shown to have occurred on the St. Louis San Francisco Railway.

Plaintiffs testified, that they were detained by that company thirty hours or more without feed and water, and that there were a number of delays. The damage testified to is the depreciation in value of the cattle on their arrival in East St. Louis. There is no testimony tending to show how much, if any, of the damage was caused on the defendant's line.

The findings of the court show that he rendered judgment against the appellant for the entire amount of damages claimed to have been done the cattle up to the time of their arrival in East St. Louis.

The trial court filed findings of fact, which are sustained by the testimony.

Opinion. — It is contended that the court erred in finding that a partnership existed between appellant and the other carriers named in appellees' petition, because there was no evidence of such partnership.

It is settled in this State that an answer denying that the defendant executed a written instrument sued on, or the existence of a partnership charged in the plaintiff's petition to exist between the defendant and another, unless verified by affidavit, does not raise the issue of the execution of such instrument or the existence of such partnership; and that, unless such an answer is filed, such facts are to be treated as confessed. Railway v. Tisdale, 74 Tex. 15; Bradford v. Taylor, 61 Tex. 508 [61 Tex. 508]; Waterworks v. White, 61 Tex. 535.

It is not necessary that an unsworn answer setting up these facts should be excepted to. If not verified, it is regarded as no answer, and presents no issue.

It is also contended, that as the contract of shipment stipulates that appellant is not to be liable for injury to the property after it had passed beyond its own lines, although it stood in the attitude of a partner with the other lines, it was not responsible for such injuries as were shown to have occurred after the property left its road.

Our views of the law are different. Each partner is liable in solido for all causes of action against the partnership. Granting the existence of the partnership, appellant's liability was coextensive with that of its copartners. The negligence of its partners became its negligence; and it is well settled that a common carrier can not by contract relieve itself from liability for its own negligence.

We find no error in the record, and affirm the judgment.

Affirmed.