Illinois Cent. R. v. Freeman ( 1915 )

FLX, C. J.

The Southern Banana Company, one of the appellees herein, sued T. J. Freeman, receiver of the International & Great Northern Railroad Company, that -company, the St. Louis, Iron Mountain & Southern Railway Company, and appellant to recover damages in the sum of $1,800, alleged to have accrued by reason of improper handling of four cars of bananas, by reason of which negligence they were chilled and frozen while being transported from Galveston, Tex., to Chicago, Ill. It was alleged that the receiver’s railroad company was the initial carrier, and that said receiver gave the banana company a receipt or bill of lading in which it was provided, “If temperature drops low enough, in messenger’s opinion, cars must be stopped and roundhoused if at station where one located,” and that, although requested by the messenger to comply with that stipulation, the defendants refused to do so, and the bananas were frozen and rendered worthless. The cause was tried by jury, and a verdict was rendered in favor of the banana company as against appellant and the receiver for 11,039.20 and against the banana company as to the other two railroad companies, and judgment was accordingly so rendered. No one is complaining of the judgment except appellant.

The bananas were delivered in good order to the receiver at Galveston as alleged and were frozen at some place, either at St. Louis, or some point between that city and Chicago while in the care of appellant. It is admitted that the clause hereinbefore copied was in the bill of lading or receipt given by the receiver to the Southern Banana Company. It was in proof that the messenger accompanying the bananas requested appellant, at East St. Louis, Ill., to put the cars of bananas in the roundhouse, as stated in the contract, and told appellant that the bananas would be lost if they were not protected. Appellant failed to place the fruit in the roundhouse, hut started to Chicago with them, and they were frozen and their value destroyed.

The first assignment of error assails the action of the court in overruling a special exception to the petition on the ground that the description of the property was insufficient. The only description given of the property is, “four cars of bananas loaded in cars M. K. & T. 3375, 3395 and 3077. and A. T. 10785.” The pleading was attacked because there was no allegation of the number of bunches or the price thereof. The allegation was too indefinite, and the special exception should have been sustained. There is no allegation of the value even of each car; the only allegation as to value being that, if they had arrived in Chicago in good order, “they would have been worth on the market and would have had a market value of $1,800.” There is nothing alleged upon which a contest as to the quality, quantity, or value of the bananas could be predicated. The bananas may have been in good order, but of such a quality and variety that a carload of them would not have been half as valuable as a carload of another quality. What constitutes a carload of bananas? Neither the pleadings nor the evidence gives an answer to the question. The allegations as to quantity, quality, and value were too vague and indefinite. Pierce v. Waller (Tex. Civ. App.) 102 S. W. 1173; Houston Packing Co. v. Dunn (Tex. Civ. App.) 176 S. W. 634.

After overruling the exception to the description given of the property, a man who says he is a “practicing physician” was allowed over the protests of appellant to testify as to the market value of bananas in Galveston by the hundred pounds, although he had previously stated that he could not say that he had ever seen the bananas in controversy, did not know how many bunches were in a car, and did not know their grades. His testimony showed plainly that he knew nothing about the four carloads of bananas and was not qualified to testify. His testimony should have been excluded. The second and third assignments of error are sustained.

The fourth, fifth, and sixth assignments of error are overruled. The testimony as to the condition of the bananas before they were delivered was admissible. The messenger had no control over the cars and they were not delivered to him in Chicago. All the authority he had in connection with the cars was to watch the state of the weather and request that they be housed. He did that several times, but no attention was paid to his request.

The seventh and eighth assignments of error complain of certain testimony as to roundhouses on other lines of railway than those of the contracting carriers. Testimony as to such roundhouses should have been excluded. The assignments of error are sustained.

The ninth assignment of error is overruled. There was no evidence of repudiation of the clause in the contract as to placing the bananas in a roundhouse. The evidence tends to show that appellant accepted the contract and that the only excuse it had to offer for failing to protect the fruit from the extreme cold weather was a lack of room in its roundhouses.

The eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth assignments of error are without merit and are overruled.

The charge, the refusal of which is complained of in the seventeenth assignment of error, was properly denied by the court. There was no testimony tending to show that appellant repudiated the special clause in the contract and that it accepted the shipment merely because compelled by law to do so. No unwillingness was evinced to receive the shipment, and the testimony tended to show an acknowledgment and recognition of the validity and binding force of the contract. This also disposes of the twentieth assignment of error.

The charges complained of in the eighteenth and nineteenth assignments of error are not open to the criticisms urged against them, and the assignments are overruled.

The twenty-first assignment of error contains matter disposed of adversely to appellant in connection with other assignments of error, and it is overruled.

The judgment is affirmed as to the receiver and the other railway companies, but as to appellant the judgment is reversed, and the cause remanded.