Missouri, K. & T. Ry. Co. of Texas v. Golson

RICE, J.

Appellee, who was plaintiff, below, brought this suit against the Houston & Texas Central Railroad Company, the Missouri, Kansas .& Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, for the recovery of darur ages alleged to have been sustained by him to four several shipments of cattle, forwarded during the month of April, 1907, from Llano, Tex., to Nelagony, Okl., over said lines of railway. It was alleged that, prior to the 12th day of March, 1907, he had purchased and under contract for delivery to him at Llano, between April 4th and 8th of said year, from various persons, about 2,062 head of steer cattle, with the intent of shipping the same to Nelagony, Okl., there to be pastured and fattened and thereafter placed upon the market; that he had arranged for taking care of half of said cattle until the 7th, and the remainder until the 10th of April thereafter, but no longer, and that on or about said 12th day of March, 1907, he fully informed the defendant Houston & Texas Central Railroad Company, through its station agent at Llano, of all the facts and circumstances above mentioned, and then and there made demand on said defendant for 63 cars in which to make said shipment from Llano, about one-half of such number to be furnished at Llano on the 7th and the remainder to be furnished at said place on the 10th of April, 1907, ready for loading said cattle; plaintiff being then and there able and offering to pay to said defendant the freight charges for the transportation thereof ; that said agent refused to receive payment of such freight charges in advance, but then and there verbally contracted with plaintiff, in consideration of the future payment of such freight charges, to furnish plaintiff, to be used in the shipment of said cattle, the 63 cars to be ready for loading, one-half on the 7th and the remainder on the 10th of April thereafter; that on the 6th of April plaintiff made further demand upon said defendant Houston & Texas Central Railroad Company, through its agent at Llano, for one additional ear, to be furnished for loading at Llano on said 10th day of April, 1907; that the time intervening between said several demands for said cars and when they were to be furnished was a reasonable time within which to do so; that on said respective dates above mentioned plaintiff tendered said cattle for shipment, together with the freight charges thereon, in accordance with said contract, but said company failed to have said cars in readiness for said shipment; and, notwithstanding his continued, frequent, and urgent de-mauds therefor, none of said ears were furnished until the 8th, 12th, and 15th days of April, upon which said respective dates the said Houston & Texas Central Railroad Company furnished a sufficient number of cars to transport said cattle, to wit, 20 cars on the 8th, 21 on the 12th, and 24 on the 15th, upon which said cattle were loaded and shipped out from Llano to Elgin over the Houston & Texas Central Railroad; thence via the Missouri, Kansas & Texas of Texas and the Missouri, Kansas &' Texas Railway to Nelagony, Okl. The last two companies were alleged to be partners. The negligence as charged being the failure on the part of the Houston & Texas Central Company to furnish said ears at Llano, in accordance with its contract, together with the negligent operation of one of its engines while there, whereby a part of said cattle were stampeded and injured, as,well as delay and rough handling in transit of said respective shipments on the part of all of said defendants, by reason of which four of said cattle died en route, three shortly after reaching their destination, and the balance thereof were injured and depreciated in value to the extent of $o per head, aggregating the sum of ⅞10,280. The defendant Houston & Texas Central Railroad Company answered by general demurrer, special exception, general denial, and by special plea to the effect that it did not contract to furnish for plaintiff’s use any particular number of cars at any particular time or place, and that at the time plaintiff demanded said cars there was an unprecedented rush of business, for which defendant was under no obligation to provide ; and also that said cattle were shipped by virtue of certain written contracts, which provided that it should not be responsible for any damage .sustained by said cattle on account of any inherent vice, nor for any such occurring elsewhere than on its own line, and that if any injury was sustained thereto, it was by reason of their being vicious, weak, wild, and unruly, and that while said cattle were in its possession, no damages were occasioned on account of its negligence. The other two defendants answered by general demurrer, special exception, gen- ' eral denial, and pleaded specially that said cattle were shipped under written contracts, which provided, among other things, as a condition precedent to plaintiff’s right to recover, that he should give defendants notice in writing of his claim for damages to said cattle within a certain period, and that no such notice was in fact given to them by piaintiff. There was a supplemental petition on behalf of plaintiff, urging various exceptions and also containing general and special denials, as well as affirmative defenses to matters set forth in said answers, but we deem a fuller statement thereof unnecessary. A jury trial resulted in a verdict and' judgment against the Houston & Texas Central Railroad Company in the sum of $500, with interest, and against the other two defendants in the surh of $1,500, with interest, from which this appeal is prosecuted.

The charge of the court permitted a recovery on the part of the plaintiff against the Houston & Texas Central Railroad Company, provided the jury believed that there was a contract between plaintiff and said defendant for cars to be furnished at Llano on the dates alleged, and that there was a breach thereof by said defendánt. This charge is challenged by several assignments, on the ground that since the evidence showed that the contract was for cars to be used in Shipping to Meyers, Old., and that since plaintiff tendered his cattle for shipment to Nelagony, that the court erred in assuming therein that the alleged contract was for cars to Nelagony. In the first place, we do not agree with appellants that said charge contained any such assumption that the contract was for cars to be used in a shipment to Nelagony, since it made no mention thereof ; but if there was any error at all in failing to submit as an issue to the jury the question whether the demand and contract was for ears to be used in shipping to Meyers, then we think' the same is harmless, because the evidence failed to affirmatively show that there was any contract for shipment to Meyers. It is true that the agent stated that he thought the original contract was for Meyers, yet he admitted that he may have been mistaken in this, and that the plaintiff at the time of the demand may have informed him that he wanted the cars for Nelagony. Besides this, it was admitted by defendant’s agent .at Llano that the freight rates to both points were the same, and that, irrespective of whether the shipment was to Meyers or Nelagony, this had nothing to do with the delay in furnishing said cars. As this is not a suit for the penalty denounced by statute for failure to furnish cars by said defendant Houston & Texas Central Railroad Company, but is based entirely upon a contract on the part of the company to furnisn the same, and its failure to comply therewith, therefore there is no force in appellants’ further contention that plaintiff was not entitled to recover because said shipment was beyond the limits of the state, and we overrule the assignments presenting this ■question.

We overrule the fourth and fifth assignments of error, complaining of the eighth paragraph of the charge of the court, on the ground that the same submitted as against the Houston & Texas Central every allegation of negligence charged in the petition, because said charge does not, in fact, undertake to do so; but, on the contrary, only submits for the consideration of the jury such acts and omissions on the part of said company as shown by the evidence in the handling and transportation of said cattle as amounted to negligence which may have proximately resulted in damage to said cattle. We think the proper measure of dam- • age was submitted, for which reason the eighth and ninth assignments, complaining of the court’s charge in this respect, are overruled.

There was no error, we believe, on the part of the court in refusing to strike out the testimony of plaintiff Golson with reference to the value of said cattle at Nelagony, which had been admitted over objection of all of the appellants. We think his experience in the shipping and handling of cattle and tne knowledge acquired therefrom was sufficient to qualify him to speak as to their value.

On the trial defendants offered to show that several hundred of these cattle were, during July and August of said year, sold by plaintiff upon the markets of Kansas City and St. Louis, and the price that was then obtained therefor. This testimony was excluded by the court, which is assigned as error. Appellants urgently insist that this testimony was pertinent, and admissible for two purposes: First, as showing the actual value of the cattle at the time and place of destination; and, second, as showing their true condition at the time and place of destination, as contradistinguished from their apparent condition immediately upon arrival, and as contradictory of the testimony of plaintiff to the effect that said cattle were seriously injured and damaged upon their arrival — citing a number of cases in support of their contention, among them Gulf, Colorado & S. F. Ry. Co. v. Godair, 3 Tex. Civ. App. 514, 22 S. W. 777; Pac. Express Co. v. Lothrop, 20 Tex. Civ. App. 339, 49 S. W. 898; Atchison, Topeka & S. F. Ry. Co. v. Veale, 39 Tex. Civ. App. 37, 87 S. W. 203; Railway v. Jackson, 99 Tex. 343, 89 S. W. 968; Ft. Worth & R. G. Ry. Co. v. Word, 111 S. W. 754, and Galveston, Houston & San Antonio Ry. Co. v. Powers, 117 S. W. 461. We have carefully examined each of said cases and, in our judgment, they fail to sustain appellants’ contention. We think the general rule upon the subject of the measure of damages to a shipment of cattle, whether the same are for immediate market or to be held for feeding and fattening and thereafter sold upon the market, is the difference between their market price in the condition in which they were delivered, and what their market price would have been at the point of destination, if proper care and diligence had been exercised during their shipment. See International & G. N. R. R. Co. v. Young et al., 72 S. W. 68; San Antonio & A. P. Ry. Co. v. Wright, 20 Tex. Civ. App. 136, 49 S. W. 147.

In discussing this subject, Mr. Elliott, in his work on Railroads, vol. 4, § 1734, says: “It is well settled that these values are to be taken at the point of destination.” Of course, appellant had the right to show that the cattle in question, upon their arrival, were not injured to the extent and degree asserted by plaintiff; and any evidence showing or tending to show the real condition of said cattle at the point of destination, as well as their value, was legitimate for this purpose; but we fail to -perceive how the abstract statement as to what a part of said cattle may have sold for three or four months thereafter at a distant market, could have any tendency toward proving their condition, or value at the time of their arrival at Nelagony. If appellants had offered to show, or could have shown, that the same kind, grade, and class of cattle as here involved had been shipped from the Llano section, without injury, to said point about the same time, and that after having been pastured for a similar period as these were, at or near Nelagony, brought in the market certain amounts, and that plaintiff’s cattle were sold at or about the same time for a similar or greater amount, then we could see that such evidence would have a tendency to show that plaintiff’s cattle were probably not injured, as claimed; but, on the contrary, that the injuries received during their shipment were slight, from which no serious results followed. However, no such evidence was offered, and the mere abstract statement that parts of said cattle were sold and brought certain amounts several months after their arrival at Nelagony, in the markets mentioned, was inadmissible, in our judgment, for any purpose. We therefore overrule each and all of the assignments presenting this question.

Appellants’ sixteenth assignment complains of the action of the court in excluding the testimony set forth in their bill of exception No. 5, which recites that after the plaintiff Golson had testified, on direct examination, that the cattle involved herein were shipped out of Llano for Nelagony, Okl., on the several dates in April as stated, being loaded in ears at the rate of about 32 head to each ear, and that such cattle shipped from Llano at that time of the year to Oklahoma usually got fat in about 90 days, but that his cattle did not get fat within that period, defendants, on cross-examination, offered to prove by said witness that on July 15, 1907, he shipped to market at Kansas City 138 head of the cattle involved herein, and at said time said cattle were loaded 23 head to the car, and that on or about July 29, 19.07, he shipped to market at East St. Louis, Ill., 236 head of said cattle, and that the same were loaded 26 head to the' ear, and that on or about the 7th of August, 3907, he shipped to market at Kansas City, Mo., 258 head of said cattle, and that the same were loaded 24 head to the car, to which evidence the plaintiff then and there objected on the ground that the same was incompetent and immaterial, and had no tendency to throw light on the issues in this case, which objections were sustained by the court and defendants were prevented from introducing the same. In this ruling, we think the court erred. This evidence, in our judgment, was admissible as a circumstance tending to disprove plaintiff’s contention that his cattle had not fattened within 90 days, as others had done, and was entitled to go to the jury for what' it may have been worth.

While the witness Reilly, an experienced stockman, was testifying on direct examination in behalf of defendant, and after it was shown that he had charge of all these cattle, and that he had examined them in a few days after their arrival at Nelagony, the defendants all propounded to said witness the following question: “Was there anything in the physical condition that you saw in said cattle at said time, when you examined them, that would indicate that they had received any rough treatment while in transportation?” Plaintiff objected to said question and any answer which the witness might make thereto on the ground that the same was incompetent, irrelevant, and immaterial to any issue in this case, which objection was sustained by the court, and said witness was not permitted to answer said question. The answer of said witness to said question, if allowed to testify, would have been that he saw “nothing.” We think this evidence was both relevant and material, and therefore the court erred in its exclusion.

A witness for plaintiff accompanying one of the shipments having testified that while on a side track they waited for five trains to pass them, the defendant offered to show by an experienced railroad man that it would have been quicker to thus wait, than to require the five trains to take the siding. We think this evidence was admissible, and the court erred in excluding it.

The other errors assigned, after due consideration, are regarded as not well taken; but, on account of the errors indicated, we thing the judgment of the court below should be reversed and the cause remanded for another trial, and it is so ordered.

Reversed and remanded.