Texas N. O. R. Co. v. Conn

When this judgment was docketed May 8, 1903, my understanding was that the reversal was being ordered only upon a majority conclusion that the special exceptions to appellees' petition should have been sustained, my inability to concur in that holding being then entered. The dissent will therefore be limited to a simple recitation of the reason for that difference, at least until opportunity may be afforded for further consideration of the whole cause on rehearing, in the absence of instant time to go into the record touching the additional ground for its decision now (on May 28, 1930) stated in this court's filed opinion.

In addition to the quoted summary in the majority opinion, the appellees alleged that appellants own and operate lines of railway extending from Camptown in Newton county, the point of origin of this shipment, to Fort Worth, the point of destination, naming their included connecting lines between those two places, and that as shippers they contracted with themselves to make the shipment of the cattle a through one over these lines under the bills of lading so providing, with the further express information and stipulation that they were not to be stopped or unloaded en route for rest, feed, or water, for a period of 36 hours, being intended for immediate slaughter at Fort Worth. Then follow detailed averments of the violation of this, along with the other declared upon obligations of appellants, including one that the cattle should have arrived at destination within about 24 hours, of which the quotation by this court is only a general resume. Paragraph 7 to 10, inclusive, to which the special exceptions were addressed, were these:

"Plaintiffs allege defendants handled the said cattle in a rough and careless manner, in the unloading and re-loading of the same, and in transporting same, and when they reached their destination they were skinned and bruised, and crippled, and shrunken, which greatly depreciated their market value. Plaintiffs allege that said cattle were fat beef cattle when delivered to the defendants, and if they had been handled with ordinary care and transported with reasonable diligence they would have been of the reasonable market value on Monday following their shipment of $5.00 per hundred pounds. Plaintiffs allege that by reason of being bruised, skinned, crippled and shrunken, arising by reason of their being unloaded, and their rough, careless, and reckless handling, and jostling in the cars, and their failure to reach their destination on Sunday, so they could fill with feed and water, their market value was greatly depreciated.

"Eighth, Plaintiffs allege that 74 head of such cattle were fat beef calves, of an average of 300 pounds each, all of which were in K. C. S. Car No. 30,310. Plaintiffs allege that if these calves had not been unloaded, and had been handled with ordinary care, and delivered at destination on Sunday, or within a reasonable time after their shipment, so they could eat and drink and be filled, they would have been of the average market value at destination of $15.00 per head or $1,110.00; but by reason of being unloaded and reloaded, and handled in a rough and careless manner, they were bruised, and skinned and shrunken and depreciated in value, and their market value was only the sum of $777.70, a loss to plaintiffs on said calves of $332.50, for which they sue.

"Ninth. Plaintiffs allege that of the remaining 114 head of cattle, three were dead from rough, careless, and reckless handling and six were crippled, while in the care of the defendants, and the nine head had to be salvaged for the sum of $46.48; that the 114 head of cattle, when delivered to the defendants, were of the average market value of $35.00 per head, or a total market value of $3,990.00; that if said 114 head had been transported to destination with reasonable diligence and not unloaded, and had been handled with ordinary care, they would have been of the reasonable market value at destination of the sum of $3,990.00, but by reason of the failure of the defendants to transport such cattle with reasonable diligence, and to handle the same with ordinary care, and by reason of them being unloaded and confined in close pens at Beaumont, and handled in a rough, careless, and reckless manner, those that were not dead were bruised, skinned and shrunken, and their total market value was only the sum of $1,833.88, a loss to the plaintiffs on said 114 head of cattle of $2,156.12.

"Tenth. Plaintiffs allege that said 74 head of calves were of the reasonable market value at destination of the sum of $1,110.00, and the reasonable market value of the said 114 head of cattle at the point of destination was the sum of $3,990.00, and if said cattle had not been unloaded and had been transported and delivered at the point of destination, with reasonable diligence, and had not been handled in a rough, careless, and reckless manner, and had not been bruised, skinned and shrunken by reason of such careless and reckless handling, they would have been of the total market value at destination of $5,100.00, but in the condition in which they were in at the time of their delivery, at the point of destination, the said cattle were only of the reasonable market value of $2,611.52, an actual loss to the plaintiffs in the sum of $2,488.48, for which they sue, together with interest thereon at 6% per annum on said sum from November 23, 1925, to the time of trial, said interest being sued for by the plaintiffs as a part of their damages. Plaintiffs further allege that in order to get the delivery of said cattle, they were required to pay for the watering and feeding of the said cattle at Beaumont, Texas, in the sum of $18.00. Plaintiffs allege that said expense was incurred by the defendants in violation of their contract with the plaintiffs to transport and deliver the said cattle with reasonable diligence at the point of destination, without being unloaded, and the plaintiffs are entitled to have the said sum of money returned, and for which they sue."

To hold the trial court's failure to sustain the special exceptions set out in the other opinion to all these averments reversible error in the circumstances is to say, it seems to me, not only that appellants' specifically declared upon and unconditional contract to quickly and with due care transport these cattle from the one point on their lines to the other should in effect be ignored, but also that the appellees were required to detail in their pleading the evidence whereby they expected to prove the claimed negligent handling of and injury to their stock, as well as the particular times and places along the carriers' through route where both took place. I cannot think the refusal to put so great a burden on them constituted the denial of any such right in appellants, under the facts here obtaining, as probably caused the rendition of an improper verdict against them, Rule 62a; Fant v. Sullivan (Tex.Civ.App.)152 S.W. 515, 522; Burrell v. Grisier, 111 Tex. 477, 240 S.W. 899; Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 825; especially when, under what seems to have been the undisputed evidence of the actual damages sustained, the appellees were only awarded about 25 per cent.

This petition indisputably was good against the general demurrer, and, so far as appears to me, there was neither injury to nor surprise on the part of appellants entailed as a result of the overruling of the special exceptions; they having actually had present as witnesses in their behalf T. A. Pressly, corral foreman at Beaumont, who unloaded and reloaded the cattle at Beaumont, F. H. Ross, conductor, in charge of the train that carried the cattle out of Beaumont to Jacksonville, L. Roberts, Western Weighing Inspection Bureau, who inspected the cattle on arrival at Fort Worth, three train dispatchers, H. H. Buxton, L. Powell, and F. E. Hoefer, and L. H. Baker, a veterinarian. This declaration of our Supreme Court through the Commission of Appeals in the Golden Case would therefore seem directly apropos:

"Where a trial court commits an error of law in overruling a general demurrer to plaintiff's petition, the judgment should be reversed; but where the trial court commits an error of law in overruling a special exception, the petition being good as against a general demurrer, but upon the trial the judgment rendered is such that the plaintiff was entitled to recover upon the merits of the case, and the defendant does not show that he was surprised or otherwise injured by the improper overruling of the special exception, the judgment should be affirmed. When given this application, rule 62a is constitutional."

Manifestly such a burden would have been impossible of discharge on the appellees' part — that is, to have specifically alleged the particular times when and places where, along the one continuous and unbroken 350-mile trip they contracted with appellants for, the alleged killing, skinning, bruising, and shrinking of their cattle occurred — because, if that took place at all under the averments, it resulted from the claimed acts of appellants, in so negligently operating the moving train at different times and places along the through route as to jerk the cattle down, or suddenly jam them violently together, which obviously could not be so particularized. See, also, Southern Kansas R. Co. v. Bennett, 46 Tex. Civ. App. 379, 103 S.W. 1115; San Antonio A. P. R. Co. v. Martin, 49 Tex. Civ. App. 197, 108 S.W. 981; Missouri Pac. Ry. Co. v. Graves, 2 Willson, Civ.Cas.Ct.App. § 676.

Neither was it necessary to resort to presumption as to negligence; there being in my opinion sufficient testimony to establish it.

These reasons for the dissent are respectfully expressed.