*1 GULF, v. C. & S. COULTER F. RY. CO. :.w.) (286 оnly Fuchs, jurors, ex- Nami, appellant, time of one of one and the at the deed, testify hearing purported it that was called the motion ecution on of hospital trial, mortgage only, Harmes secure certain new testified that he saw1Mr. a charges, thereafter ascertained when she became ill was which were while cause nothing tried; paid $116; appellant that that incident effect that had no to be repaid appellant upon case; property; verdict not that his that it did pay- any and tendered in case; manner $116 sum of affect his consideration of said refused that the same ment of the remainder but he would have rendered payment to release refused verdict if Mrs. Harmes had remained in to the mortgage, although promised health; to cancel that her no conduct and illness in verdict; payment sunl his affected that incident the instrument of her illness and not mentioned of was $116. сonduct daughter Ludwig jurors Sophia Harmes, jury all; of Harmes in the of room wife, it.; time the testified that that not a word was said and that about appellant told purported it deed was executed was not taken into consideration. Testi mortgage signed parents further, a fying that her no her witness there was hospital. money jury get her to the send on the one bench when the went out as ap saw, introduced [3] There was evidence far as he least he did see one tending support bench; fact, that pellant that, his contention was one hallway through absolute intended as an instrument was that when the went the deed of creating conveyance, a conflict thus there. only. circumstances In such There was of of jury scintilla evidence tend- credibility judge ing feigned the sole was to show that Mrs. Harmes ill- given weight to ness; to be the witnesses that the ever saw her after she liberty testimony, courtroom; are not we their assisted was finding. aside its set conduct manner her dict of the appellant allegation affected the ver- assignment complains jury. fact, shown, [4] The second so far as wife, appellees who Harmes and fact claimed offered to sustain the no evidence give assignment. their unable to set out in his third It language, per English testimony is overruled. testimony through give disposes an ap- mitted to interpreter, their What we have said all parties assignments. could pellаnt’s a fact such when English given judgment their is affirmed. language. Affirmed. record, nothing than is There trial, to in the motion assertion new (a) Harmes and wife testified show interpreter; (b) that, through did an * GULF, any objection so, made to C. S.& F. RY. CO. was at the time (No. 11303.). testifying; (c) manner exception action was reserved to the bill of (Court Appeals of Civil of Texas. Fort Worth. parties permitting-said so the court Rehearing Dec. 1925. Denied testimony. give 1926.) is What have said their we overruling the second а sufficient reason <@=>79. 1. Carriers assignment. If carrier was informed of assignment last is third and [5] The why shipment should reach destination within refusing ap erred in motion the court pellant specified time, nor to use shortest trial, in that the new. longer cheaper route, did not constitute appellant’s Harmes, Minna after counsel conversion. argu up his ease concluded summed Appeal and 2. error <©=ol002. plaintiffs’ ment, was mak and while counsel Jury’s finding conflicting of fact on evi- feigned closing argument, that she appeal. conclusive dence is fainting; that she went exhausted hysterics into the arms and fell of her into daughter Appeal <@=ol005(l). 3. error and. carried out and was court Jury’s finding trial court’s bystanders placed arms of room on the on bench rectly special damages depending on tice to carrier on no- lobby appeal. courthouse di cannot be disturbed path obliged <@=>135 Shipper’s damages 4. Carriеrs — their their consultation take on damages delay and is differ- carrier’s room; that such conduct influenced the ver thereof at ence In value destination and rea- condition appellant. against dict sonable offered on the motion rela All the evidence shipper. delivered or tendered the-allegation that Mrs. Harmes was tive feigning delay Shipper’s damages from carrier's allegation refutes such illness delivering thereto is differ- fаct sick that she and needed destination, shows at time in value reached ence destination, or at leave the courtroom. John time of tender assistance Digests and igs^For Key-Numbered Indexes all see KEY-NUMBER in topic other cases 20, 1926. refused error October *Writ of *2 REPORTER SOUTH WESTERN 560- shipped shipped, care shipper, cars in he with which the to and dispatch, and reasonable greatly damaged, found the and that they in at time thereof such condition nearly yеar’s after a of himself and effort delivery or tender. attorney $1,200, at sold he them get. for the best that could bid he Appeal &wkey;>l79(3). error 5. That looked at Philadel- at the Shipper’s failure have issue to seek to phia, negotiate any and first declined to fur- damage delay damages, because of to to trade, finally ther with reference but jury, transit, it makes to submitted ^o agreed plaintiff impossible loss sustained appellate that if the would have detеrmine for to good they him. at in as condition .pay leaving Worth, the time of freight accept Fort Appeal Court, from District Tarrant Coun- Detroit, Mich., to he thereon would ty; Roy, Judge. E.R. L. provided agreed price, them at the he days. would deliver them Detroit within at Gulf, against Action H. W. Coulter alleged He goods, manufacturers Railway Company. Colorado Santa Eé & Company, Brunswick-Balke-Collender Judgment ap- defendant, plaintiff for plaintiff, consulted with peals. Affirmed. repair could not them less than six within Hunter, Worth, appel- months, consequently Sam for Fort J. he was forced and that of sale lant. to lose the the contract benefit of Lee, Worth, Wren, Eby. for & of Fort Lomax theretofore made with appellee. conversion, and in In one count for he sued damages rea- a second count he sued for the trade benefits of loss son BUCK, appeal This this J. is the third Eby. made claimed to have with been case, аppeal the decision of the first by way aof num- defendant answered Tex- found in 139 W. rendered S. denial, spe- exceptions, general a ber of cially pleaded Appeals, the of Civil decision arkana Court in the 788, company railway had appeal being in 248 W. S. second plaintiff by the made notice of trade court, which cases rendered railway although Eby, and that with for a made is fuller statement will be reference of company agrеed plaintiff it with necessary here. than case in time to divert notified 20, 1908, filed suit On H. W. March Coulter line to Louis the defendant’s “St. from against Gulf, & Fé Rail- Colorado Santa yet so, Indianapolis, etc., do it would Company then in fact way alleged to a for railway plaintiff notified the never furnishings, shipped of billiard room ment company diversion have such of his desire to Philadelphia. In his from Fort alleged: That, made. petition before the he trial shipment, jury, a had agents The triаl was before company’s railway answers, issues, which, are fol- their with agreed him to route Fort Worth Louis, lows: and over St. Indianapolis, .Railway Coulter, Vandalia line to plaintiff, the and shipment owner “(1) Was stop time he delivered that he should have the the them defendant, Gulf, Fé & Santa Colorado Indianapolis, or to divert it to n RailwayCompany Tex., Worth, at Fort Detroit, a he had made trade Mich. That Ans. Ves. 1907? him the furni- H. with one Grant sell “(2) and condition order Were $3,000 paid $7,000, in cash and for ture delivery defendant? Ans. at the time of agents he That told in notes. balance the of the trade Yes. company railway of this Fort Worth freight agent, “(3) Did the defendant’s Dun- Eby, had made with report and that ham, or written deliver to alleged goods? lading had notice of such He trade. Yes. bill of said plaintiff notify by way the defend- shipping Did or instead of Dunham, agents, or either of ant’s them, Graham Indianapolis, shipped Louis at the time before or he delivered Chicago, over the Santa them to lines conditionally he had system, the Nickel Plate Rail- and over Fé way Eby? goods Grant H. Ans. No. sold Chicago Company Buffalo, “(5) Find the evidence whether Lehigh Railway Company from over the Buf- Dunham, showed Graham Ridge falo, tains, n either and across the Blue Moun- them, Eby letters read to Reading evidence. Ans. & Rail- Find from evidence whether or way Company, which delivered Dunham the waybill to route and yards Philadelphia. its he was That St. Louis over compelled by plaintiff Indianapolis, line of Vandalia it, seeing pay without and to Ans. No. Ind. freight bill $549.69. .of That said Find from evidence whether or not nearly in transit was further two agreed buy months. He Eby in his letters to alleged opened $7,009 that when'he conditioned Coulter’s two deliver- Digests <&wkey;>For topic Key-Numbered other cases see same ail Indexes KEY-NUMBER GULP, & C. F.S. RY. CO. (2S6 Í.W.) Philadelphia. Indi- Fort Worth to Ans. Five hundred order forty-six sixty-nine pay dollars and cents. Coulter anapolis or pay- balance Find from the the de- what what his notes and execute agents freight fendant’s Yes. told monthly month. able not, charge *3 or would be if told whether to “(8) evidence the from Find they goods him to de- de- what definite would be. Ans. No said delivered time Coulter the at charge quoted. mind Ms had in fendant for goods “(20) shipment goods said What was the entire price deliver and said to cided Eby Coulter, goods, worth to Indianapolis as secondhand billiard Detroit Eby or at to as. they Philadelphia, рarties requested St. in met in in were in if, request, might when Eby when delivered to Coulter? Ans. No stated days as later a few Louis in his and value. contract letters, details the.satisfáctorily “(21) they to What were worth to Coulter in payments be settled should city day they the same to were sold parties. Ho. Ans. both afterwards, Company, Eby Brunswick-Balke-Collender ber Novem- plaintiff and “(9) Did 27, 1907, 1908? hundred in St. Ans. Twelve dollars. May, meet early month of in “(22) price satisfactorily to obtained from Bruns- Was the details settle and Louis Company price good [as wick-Balke-Collender No. Ans. other? each good pay as could in Eby time] at as agree should they “(10) Did price as goods could be obtained for them reasona- if deliv- for cash to ble efforts to sell them cash in the condi- order Indianapolis Detroit or ered in they they payable tion were when were sold to ment, possibly notified defendant’s by way to its Own of the sale with them route, titled to recover: sentеd three ment, fendant below. low, ted, reason for but it court Yes.” 'in ment, court court for tract, you will find from the last Eby swer whether or not ry out said contract. Ans. Yes. by Eby contract? Ans. Account question ‘yes,’ Nos. answer whether tables, ped condition as such additional Fort Worth nitely Light ton, etc., damaged extent unknown. will state whether or not the sustained er than the crating then According Neither Both “(f) question cover, failure as to nor or of question testified 9 and you erred *4 injured and his desire to have the defendant and the granted is globes, according as goods. chairs and If If If If plaintiff Did the bid of the witness John of to as aforesaid. Ans. Yes. complains the contention of Eby, covering judgment upon you any will state you the why party the answers of the long, circuitous, use, you 10 in you Detroit, Mich., injury, putting before theories to his and the granting have answered why damage as stating overruling carrying in plaintiff he would can (2) defendant’s motion for Louis and have answеred and was Eby damage, have answered the by complained (1) to direction and racks, and defendant moved the That he would not here, the result in effect converted the register, and electric shipment? injury agents him, reason, thereafter the nature cover, pleadings, plaintiff pre- be That affirmative, such, extent answered condition.as the out the has inasmuch as he and other of the issues submit- describing this liable his motion for in space reason сlaimed motion of his which he was en- appealed. goods carry if of question (e) ‘yes,’ the in the court be- of such pool verdict, fact, plaintiff’s was it suflieient declined to contract. Ans. any, the jury thereto; and extent mountainous carry shipment the shipping below. out contract in when it left and billiard goods injury, you reason of it as above and the value preceding No. shipping improper so and the you goods. and an- the de- out the routed goоds age issues judg- Eby’s judg- goods given shipment by way Hus- ship- fans, and and the reasonable market value of such con- defi- car- oth- ment reached its tiff of the shipped the recovery covery the of finding contract of sale defendant dence, ing having by plaintiff routing, told them that he wanted the plaintiff denied ever routed. Both of defendant at Fort Worth these letters and ment was the ment to apolis, and best route. The evidence showed that found that was not why sion. thе found that same, and thence over other lines to company vert Indianapolis, in a Vandalia line to from Fort Worth to St. Louis and over the said Dunham did not answer to issue No. 12 the [4] [3] Since the special damages disturbed. should be entitled to recover for the dam judgment to the of St. Louis and given time, such had the upon Nor was the and in answer to issue No. 17 the tender would be the difference in the value of with the In answer to issue No. been informed that delivery with reasоnable care and or that the condition as set Chicago, testified that he showed the permissible, was not written to shipment by way finding routing were not notified of do we think that we can disturb that count in the that he wanted the diversion question, destination, having should reach we see no reason below on the third shortest, of fact jury agents cheapest, out in the way Eby requested jury between and was not Indianapolis. destination, of the informed of over the Santa FS should depending upon of St. tender to the seen the letters or ever defendant found the amount of such re had ever been informed plaintiff suggesting to divert to upon contradictory Indianapolis. testified in and but the rates were the waybill jury at the time the but not the shortest constitute a conver Louis, Eby requested petition. we see no reason that the were at the time judgment is decisive. jury petition or at the time waybilled If the why the Philadelphia, 16, St. and Indian ground person shipper shipper, notice, found that agents dispatch, á If shipment Louis to the This be existing railway system, cannot matter agents plain ship to di with ship ship thus jury jury why evi y. GULP, C. & F.S. RY. CO. 563 (286 S.W.) Jackson, by improper crating. apparently The ing Ry. 62 was caused H. & T. C. Co. order. Cyc. p. testimony 386; 209; p. 920, crat- otherwise shows that the § Tex. L. R. C. employed, plaintiff, 625, was done men § 4. distinguish to and no effort is record made between There is no any injuries injuries by improper shipment caused what was the difference market value of the by improper crating. no goods, is caused Therefore, finding In an- we dis- to such value. conclude we cannot judgment respect, turb the found and all as- to issue No. swer stated value was ship- signments overruled, are is shown of the entire goods, affirmed. billiard ment of in as secondhand in to Appellant’s Rehearing. Motion for Coulter; in answer when delivered to issue No. worth jury' Our attention has been called to follow- day to Coulter in said -original opinion, statement made our they were sold to Brunswick-Balke-Gollender to wit: found, Company. in answer further specially pleaded com- “And price from, obtained to issue pany made no notice of* trade price company as could said have was as Eby, although that; rail- with in that time and been obtained at that way company agreed it was place, by for cash reason of efforts to sell time to notified divert the *5 The were in when sold. from Indiаnapolis,- plaintiff his desire line defendant’s to St. Louis that there was current further found so, yet etc., it would in fact do notified the never such diversion made.” in' were delivered to to have sold. In answer or when there was to issue No. 26 the found that again carefully We have read the somewhat testimony, of. “no the value” shown in the stated lengthy pleadings do not Port when delivered Worth pleading find above therein. The writer railway company. And in an- the defendant supposes gathered argu- that he from the oral to issue No. found that there swer was no “determined” value 27 the ment that such contention was made railway company, inadvertently May 2, 1907, Port the date of pleaded. it was so that that such do But we not think plea ment. was essential to sustain the below, submitted [5] We do find issue for the defendant or here. every plea general which would have elicited the answer neces denial support alleged plaintiff, except to be determined order to sary verdict recovery. as was fact admittéd. statement ground printed on this report the above appear, It devolved on below to will not nor ref- seek to have submitted such issue was thereto be made on the motion for erence support it, rehearing. and his failure impossible Appellant lengthy to do renders it for this so to determine court mo- on mo- has filed an able and argument any, tion, also a writtеn lpss, he sustained. carefully tion, App.) (Tex. and con- and we have read McMahan Civ. S. Abilene v. Complaint 188; Ry. (Tex. G., the same. is made sidered H. & A. Co. v. Price S. W. City Transp. 524; App.) evaded the con- and this court 240 W. Texas Com. Co. v. S. the trial sideration involved has questions App.) and issues 222 W. federal appeal, S. Winters Com. Specht (Tex. App.) 541; that this court in this Civ. Chesnut process of law due below, denied from the wit 830. The evidence W. S. guar- law, equal protection of the Huston, engаged who was James ness “hardwood Amend- the Fourteenth finishing him under working anteed ment to have and hardwood n —in the furniture We Constitution. the United States business,” was that carefully earnestly considered repair and revarnish the billiard ta he would bles them in as prior im- that we can not believe We do pieces place motion. of furniture and and other opin- reasoning given original prove in our a condition judg- support conclusion that the injury our shipment. ion to Hе tes do not see that affirmed. We off; part ment should this of one that he noticed crate back, tified of, disposed case, involves' here plank is, nailed across the of a any question arising question, or federal was lost or off. That none of tables crate Amendment. injured, strained, of the Carmack virtue other crates rehearing any way the motion is over- Hence damaged in that he-saw. He fur injury shipment ruled. testified ther notes condition, exeсute Company? Brunswick-Balke-Collender Yes. Ans. or at thereof monthly from date interest cent, said annum, per and secure per about “(23) Find from whether mortgage entire evidence chattel notes ment was in current goods? Yes. Ans. they for such special in the condition were issues you “(11) have answered If they Coulter, when were delivered to when affirmatively, from or find then 8, 9, 7, Nos. the they were sold. Ans. No. your would evidence “ (24) plain- Find from the evidence whether or vаlue cash the reasonable been have Philadelphia attorney, shipment Mr. Coulter Mr. said of sale of contract tiff’s writing Saul, purchas- up made reasonable to find á efforts closed Coulter, had been if it duly goods. parties er said Ans. Yes. agreed as secured “(25) plain- payment. Ans. Find from including the evidence whether recorded lawyer Philadelphia got tiff and his the best dollars. thousand Seven price in, them, or in the condition whether “(12) evidence from the Find .waybilled that could Dunham, be obtained reasonable efforts and agent, defendant’s not the the Louis, ordinary diligence. -Ans. Yes. shipment "Worth Fort from “(26) rail- What was the value line market Mo., the Vandalia and thence over shipment of said Indianapolis. Fort No. Ans. road and when the de- “(13) defendant's delivered or whether Find agent, waybilled Dunham, Atchison, fendant’s them agreed the- via agent have should Chicago Topeka Indianapo- over the stop & Santa Fé рrivilege Railway, N. Buffalo, request- Eby and over the Nickel Plate to in case it to Detroit lis and divert Y., Lehigh Valley and over Railroad it. Ans. Yes. ed Pennsylvania through No Philadelphia? policy into Ans. “(14) of the defendant Was it waybill stated value. shipments company the when to route “(27) they reasonably Topeka Atchison, What were worth to Fé Railroad & Sante Worth, 2, point Tex., Forth of destination could reached 1907? diverting it over said road? Ans. Yes. Ans. No determined value. waybill “(15) “(28) thеy reasonably Did Dunham What were worth to Topeka Atchison, Indianapolis Detroit, Santa Fé in ac- over the & Coulter crated Mich., May, 1907, policy, with that and for cordance purpose in order throwing defendant said com- in when delivered to defendant? Ans. Seven pany proportion freight. freight rates thousand less dollars greater Philadelphia? “(29) from Foi-t Worth to Ans. Yes. What was their reasonable market “(16) Ind., Indianapolis, Find from which value in the evidence cheapest, waybill shortest, Mich., during May, month best 1907? Ans. Indianapolis, way said defendant No value. waybilled way requested, them or the would What have" been reason- request, ably troit, Mich., condition waybilled, Indianapolis he did in his letter of worth to Coulter in or De- April way 24, May, 1907, 1907. Ans. The in as order and shortest, May 2, but the were the same. rates were on Worth, Find from the which Tex.? was the Fort Seven thousand Ans. dol- shortest, cheapest, freight. waybill lars, and best route to less the undisputed de- The in this сase waybilled plaintiff’s fendant them or the route from Fort shows that the crated at City, by plaintiff’s agent. AVorth you Now, Oklahoma hence to St. Louis Fort Worth Philadelphia. following questions: over the Vandalia line to Ans. answer waybilled “(a) crating The defendant was the were there cheapest, best, openings but not the shortest and sides in the of the crates route. where the might Find from the evidence what sum of or other tables furniture be scratched money pay Philаpdelphia did Coulter & or marred from outside? Ans. Yes. Reading Railway Company dray- leaving freight “(b) you openings Did the of such age transportation expose of said found left have the crates thfc 286 S.W.—36 2S6 SOUTH WESTERN REPORTER Ans. Yes. describe and liard tables proper crating gouged tables and other “(e) “(d) “(c) openings being Three If in If Did you any damage the outside hundred state have found the answer answer were left furniture the extent of such left dollars. question (c) goods? furniture result under plaintiff’s next be scarred crates, question plaintiff’s by reason of ‘yes,’ Yes. preceding damage. (a) you bil- im- ? ' them, shipment by way of St. Louis over the Van dalia line of agent hereinabove, did in shipment, therefor. pleadings sale, [1,2] By question, by at Fort he lost the benefits of said contract of request Dunham, a claim for (3) the answer to Worth, rough handling, reason of the plaintiff presented to route and found that the long delay the defendant’s etc. to the waybill was liable in his
Coulter v. Gulf, C. & S. F. Ry. Co.
286 S.W. 559
Tex. App.1925Check TreatmentAI-generated responses must be verified and are not legal advice.