Texas Cent. R. Co. v. McCall , 1914 Tex. App. LEXIS 428 ( 1914 )

HALL, J.

Appellee, McCall, instituted tliis suit against appellant and the Texas Pacific Railway Company to recover damages growing out of a cattle shipment from Rotan, Tex., to Ft. Worth, Tex. It was alleged that on account of negligent handling and the manner in which the ears were bedded by the Texas Central Railroad Company at point of origin, and on account of the negligent delay and the jerking and jarring of the cars in transit over the lines of both companies, plaintiff was damaged in the sum of $840.

The Central Company answered generally, and specially that the plaintiff entered into a written contract with it, by the terms of which he agreed he would be estopped from denying the condition of the bedding, as shown by the condition report signed by himself.

By supplemental petition, plaintiff denied the execution of the condition report, and pleaded further that, if he signed the report, it was done only as an accommodation to the conductor, and without plaintiff’s having read the same, and for the purpose only of indicating that such shipment had reached the terminus of said company’s line, and for no other purpose, intent, or reason.

The Texas & Pacific Company, by special answer, alleged that the cattle were shipped under a written contract for through carriage; that they received the same from the Texas Central Company at Cisco for transportation to Belt Junction, where the shipment was delivered to the Ft. Worth Railroad Company.

Upon a trial before a jury there was a verdict and judgment in the sum of $250, with interest and costs of suit.

[1] The first assignment of error is predicated upon the third special charge requested by the Texas & Pacific Company and given by the court, referring to the duty resting upon the Texas & Pacific Company in the movement of said shipment on the first regular train passing through Cisco in the direction of Ft. Worth. No objection was made and no exception taken to this action on the part of the court, as required by Acts 83d Leg. c. 59, p. 113, and, under article 2061 of that act, the giving of such charge must be regarded as approved by appellant. Q., A. & P. Ry. Co. v. Galloway, 165 S. W. 546.

[2] The eighth and twelfth assignments, as contained in the motion for new trial, are submitted by appellant together as his second assignment of error, and refer to the condition report, which is signed by appellee, McCall, and which states that the bedding in the cars was good. The statement of facts in this case has attached to it, as exhibits, two condition reports, three bills of lading issued by the Texas & Pacific Railway Company, and three issued by the Texas Central Railway Company, which show to be the original bills upon which the cattle were transported. This method of preparing a statement of facts is not in accordance with rules 72, 73, and 74 of the district court (67 S. W. xxv) and articles 2068 and 2070, R. S. 1911. These papers, or such parts of them as bore upon the questions presented, should have been copied into the statement. The contracts were not attached- as exhibits to the pleadings, and the proper practice in such cases is clearly stated in Byers et al. v. Thacker et al., 42 Tex. Civ. App. 492, 94 S. W. 138/.

[3] We have, however, considered the statement of facts in connection with the assignments, and we find that appellant offered no testimony to prove that by reason of the statement contained in the condition report with reference to the bedding, that it was misled and induced to refrain from doing •any act, the performance of which would have placed it in a better condition, and there is therefore no estoppel.

[4] We think, further, the conditions under which appellee, McCall, signed this report would not have the effect of making the statement binding upon him. M., K. & T. Ry. Co. v. Gober, 125 S. W. 383; Mo. Pac. Ry. Co. v. Ivey, 79 Tex. 444, 15 S. W. 692; Mo. Pac. Ry. Co. v. Fennell, 79 Tex. 448, 15 S. W. 693; St. L. etc., Ry. v. Turner, 1 Tex. Civ. App. 625, 20 S. W. 1008.

The judgment is affirmed.