St. Louis Southwestern Ry. Co. of Texas v. Kelly , 1915 Tex. App. LEXIS 165 ( 1915 )

The suit is to recover the possession of two trunks and a box containing wearing apparel, or their value, and for damages for the loss of the use of the goods. The appellant entered a denial and asked for legal storage charges that had accumulated. The suit was tried in the justice court, and appealed to the county court. The judgment of the county court allowed recovery of the baggage, or its value if not delivered in a reasonable time, and damages for loss of use, and denied a recovery to the company of storage charges.

The company had the trunks and box in its possession, but failed to deliver same to the owner because they were unmarked and without any check to identify them. According to the testimony of Jones, offered in behalf of appellee, he informed the agent at Mt. Vernon of the circumstances under which the agent at Dallas had forwarded the baggage, and that, as a consequence, the agent at Mt. Vernon knew whose baggage it was and how it had gotten to the depot at Mt. Vernon. And in support of the court's judgment it should be assumed, and we do so assume, that Jones informed the agent of the circumstances of the shipment at the time he called for such baggage, as testified by him, on the evening after the arrival of the train on which the baggage was due to come. It does not appear from his testimony to the contrary. In this fact the storage charges claimed in this record would not be allowable, and the court's finding would be sustained by the evidence.

The judgment of the county court provides:

"And it further appearing to the court from the evidence that the defendant introduced no testimony in the lower court in support of its cross-action, nor offered any defense whatever, it is therefore ordered, adjudged, and decreed that all costs in this behalf expended be taxed against the defendant, and that plaintiff have his execution."

The appellant moved to retax the costs, and it was overruled. The error assigned is to the point that the testimony fails to support the findings of fact which the court determined to be "good cause" to adjudge all costs against the company. The appellee recovered a less judgment in the county court than in the justice court. It is thought that this court, under the assignment as made, can review the action of the court.

The only evidence in the record pertaining to any action or conduct on the part of appellant in the justice court lay in the following: The plaintiff's counsel on cross-examination asked the three witnesses of the company, testifying in the county court, if they testified in the justice court, and they answered that they had not. There is no evidence that appellant offered no testimony in the justice court, or acted in a way to prevent a full and fair trial of the case in that court. Clearly the evidence does not present even a similar case to Railway Co. v. Milliron,53 Tex. Civ. App. 325, 115 S.W. 655. The court's finding of fact which was by him given the effect of "good cause" is not, it is thought, warranted by the testimony; and therefore such finding of fact is set aside. This necessitates modifying the court's judgment in so far as it taxed costs of the county court against appellant. As modified, the judgment is affirmed, with costs of this appeal taxed against appellee.

Modified and affirmed.