St. Louis & San Francisco Railway Co. v. Wilhelm ( 1908 )

Appellee brought this suit against the St. Louis San Francisco Railway Company and the Ft. Worth Rio Grande Railway Company for $950 damages on account of rough handling and delay in transporting about 700 head of sheep from Brady, Texas, to East St. Louis.

There was a jury trial resulting in a verdict and judgment for appellee against appellant for $588.85. There was no recovery against the other road. The case has been brought to this court by the losing defendant, and submitted upon numerous assignments of error, the most of which relate to rulings of the court upon the admissibility of testimony. While all the questions presented have been considered in consultation, it is not deemed necessary to treat all of them in detail in this opinion.

In the original petition the name of each defendant was stated. The defendants answered jointly. Thereafter the plaintiff filed an amended petition in lieu of her former pleading. In the latter petition the names of the defendants are not stated, but it is therein alleged that "the defendants are railroad corporations . . . and have been duly and legally cited, and have answered herein." Thereafter a joint answer was filed by the defendants, in which they designated themselves as "defendants the Ft. W. R. G. Ry. Co. and the St. L. S. F. Ry. Co." After the evidence had been closed, and the opening argument for the plaintiff made, the court permitted the plaintiff, over the objection of the defendant, to withdraw her announcement of ready for trial and file a second amended original petition, in which the names of the defendants were stated. The action of the court in that regard is assigned as error, and the further contention is made under several assignments that the filing of the first amended original petition operated as a dismissal of the plaintiff's suit as against the defendants named in the original petition, and that the cause of action set up in the second amended original petition was barred by limitation, more than two years having intervened between the alleged injury and the filing of the second amended original petition.

It is not believed that any of the assignments relating to the matter under consideration point out reversible error, for the reason and because the defendants were never dismissed from the case as presented in the original petition. The first amended petition gave the same style and number of the suit, and stated that it was filed in lieu of the former petition, and that the defendants had been duly cited and had filed an answer. We are inclined to hold that the latter pleading sufficiently identified the defendants named in the original petition, but if it did not, the defendants' answer to that petition supplied the omission.

The various assignments relating to rulings made upon the admissibility of testimony are overruled. The questions are not of such importance as to require discussion in this opinion. However, to prevent a misapprehension, it is deemed proper to say that while some of the testimony was perhaps similar to that considered and held objectionable by the Supreme Court in the case of Houston T. C. R. R. Co. v. Roberts, recently decided (101 Tex. 418), the objection urged and held tenable in that case was not made in this case.

We are of opinion that the plaintiff had the right to allege and prove that on account of unreasonable delay in transportation the sheep did not reach their destination at a time when there was a market for them, and that it became necessary to hold them there for three days, in order to sell them, and that their condition, weight, etc., at that time, and the price for which they sold, were factors proper to be considered in arriving at a correct measure of damages.

We also hold that there is testimony in the record which supports the verdict, and we overrule the assignments complaining of the same.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.