*1 MoAnulty. 321 F. & D. C. v. W. 1894-] Company Railway City Fort & Denver Worth McAnulty. R. E. v.
Nо. 971. against a amended Limitations—Two Years—Amendment.-—An 1. injuries seeking to other cattle than those additional for common years occurrence original petition, and filed more than two after the mentioned statute, although subject up action, cause of bar of injuries, sets a new of the one and the same time. injuries all done at were Beyond Carrier—Liability Its Line.—In absence of a contract 2. Common goods damages to assuming not be held liable for a common carrier can beyond resulting its line. Shipment.—A Carrier—Through. petition alleging Pleading—Common 3. shipping cattle to from a defendant accepted Chicago, connecting lines, to defendant Chicago, shipment thence to for a certain com- Cairo, for cattle from sufficiently charges special exсeptions, a contract pensation, absence shipment. pleaded special Pleading—-Inconsistent Pleas—Evidence.—Defendant 4. liability beyond cattle, exempting it from under which received the contract specially, signed denial, also, that he pleaded general own line. Plaintiff Held, that this admission of the execution of the contract did duress. under producing original, plaintiff wоuld be de- defendant from otherwise not excuse altogether. prived general of his denial of the benefit ON MOTION FOB BBHBABING-. Statute—Trespass.—A petition alleging Years 5. Limitation—Two that de- transport plaintiff’s Chicago safely expedi-
fendant carrier contracted cattle tiously, provide cars, negligently, it failed to and ran its suitable cars whereby killed, some of the cattle were and others were bruisеd became sick and depreciated property coming states an action of within limitations. Appeal from Tarrant. Tried below before Hon. K A. Stedman. Spoonts appellant. 1. A railway Stanley, &Meeh, to cattle company improper shipment years barred the statute limitation in two from the accrual Stats., of action. Rev. Railway art. v. S. 3203; Thompson, 174. Rep., W. railway
2 A
company,
goods
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to be trans
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only bound,
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carry
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(U.
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Railway Mfg.
S.),
carrier.
v.
Wall.
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324;
Railway
v.
v. Rail
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Conn.,
Myrick
Rail
1;
Pratt, Wall., 123;
Railway
Railway
v. Will
way,
Vol. VII. Civil—21. submitting jury question erred The court resulting beyond its own defendant *2 plaintiff any such pleading charging there was no on behalf of up set limiting and the answer of the defendant a contract said contract damages resulting on its own to plaintiff plaint admitted executed the and defendant, to been thereby necessity with the supplemental dispensing iff’s first petition, Ev., 2 and 6 note; contract. Whart. sec. Am. proving 1112, said Encyc. Law, p. Coles v. Eng. and Moffatt 84; Perry, 109; De Hardy Leon, v. v. 1 Greenl. on Sydnor, Texas, 243; sec. Ev., to pleading up
4. Where a filed a defense an action sets written or in contract on which defense whole is and founded, where it is said answer that written alleged said contract executed by the and where the execution said written not denied under the contract is oath but execution is plaintiff, to expressly admitted, sought confess and avoid said written defendant not required the is plaintiff, introduce but written contract the admissions evidence, pleading prоof the defendant are sufficient of that and the fact; court charge jury ignore to the should not existence express over the admission of the because the same plaintiff, was not Ev., produced in evidence. Abbott Trial 692; Mill West. As. McLaughlin Rep., v. 396; Alexander, 49 N. W. Ill., Booty appellee. McCart, The two statute of Wynne, apply limitation does case, article 3207 the Revised years had not elаpsed Statutes and four from the applies; date of the shipment breach of the contract of the cattle date of filing original petition. Appellee’s amended is one ex con- arising tractu. The is one recover for breach a contract, for tort within is not one debt of the statute. art. Millican White & Stats., 3207; Railway, Willson, Rev. v. sec. 171. We think HEAD, Justice. the court erred in Associate below appellant’s overruling interposing statute of appellee’s limitation first original petition. amended alleged August stock is have occurred 1887. The 26, original petition claimed for the total damage of six head cattle, loss $30 damage $10 value each, eighty-one head, per petition $990. a total of head, making filed November January 1891, appellee peti- 1888. On filed an original amended he tion, alleged the date the same original (August 26, but claimed 1887), damage total loss of $30 eight head value to 350 damage head, McAntjlty. 1894.] & D. C. W. F. damage to be the alleged gross each, at-the rate of
head, appellant interposed the $2740. To this amended sum of part of the dam- by special exception to all that of limitation head included resulting eighty-seven claimed age above original petition. exception should have been sustained. The amount We think this original eighty-seven head was damages claimed as but the additional petition, not increased the amended therein to have resulted other and different ani- alleged claimed damage may mals The fact that this entirely. have occurred at same the same acts which originally caused not relievе the claimed, pleading the asser- believe, being one, If tion of a new cause of action. the same should kill act, *3 B, A and the owner named should sue for the horses, value expiration of A only, prescribed by and after and claim for the B statute should amend value of also, believe must be held that this would be the necessarily assertion a new far as it sought of action a for the value B; and wе that to be, understand this case. effect,
It must be taken now as established law this State, absence of a contract such assuming a common carrier can liability, not be held for damages resulting goods beyond liable to own line. In Texas, Hunter v. a case in which Railway, special there was a contract exempting the initial carrier from such said: “These facts did not a cause of action establish defendant, a beyond common carrier is not liable the terminus of its own liability by unless it has assumed line, contract. Trust Co. v. Railway, Railway, Fed. Ortt v. 396. And the Rep., 247; Minn., place beyond fact alone that it for a goods received marked its own import transport terminus does not agreement an the destination * * * Laws, named common as a carrier. sec. 240. Carr., beyond reason a railroad not liablе own line as a carrier, express in the absence of is because it is a common contract, beyond liability its own line. The to it no law attaches a beyond common carrier of its own and does not com terminus pel it to act as a common carrier other lines not within its control. over way liability Rail this at Baird, when does Hence, it.” assuming must be virtue of some contract tach, Appellant upon error to the assigns charge given jury, ground appellee’s petition. that no contract of carriage charged “ point The allegation upon this is as follows: That defendant was said time a common carrier of cattle for during hire, being points the business of cattle to and from different in Texas transporting ran, also, by where its of connecting railroad lines, States, espeсially place other to said that on the said Chicago; day plaintiff last named delivered to said defendant as common carrier, at a certain aforesaid, station on its said wit, road, Quanah, and defendant then and there accepted and from plaintiff received head of fine, fat, beef the value of cattle, to be safely head, and securely and and within a expeditiously, reasonable time then next conveyed Quanah carried and following, said station of to a cer- tain other station, from thence to wit, Cairo, place of Chi- cago, place and at named to be said last delivered to one Gregory, Cooley agents & the all for certain plaintiff; reasonable hire and paid by plaintiff.” reward to said defendant that behalf We think these sufficiеnt, averments the absence a exception, charge a of through shipment between plaintiff defendant.
Appellant also error assigns challenging sufficiency of the evi- dence to show a contract charge sufficient with beyond resulted the termination of its own line; but, the judgment must reversed the reason above it would indicated, proper not be us to enter discussion evidence. Apрellant pleaded special contract under which it received these exempted it from liability beyond own line. To appellee answer filed general denial, pleaded specially, also “that duty violation of its as common and in violation of the law and statutes refused to State, plaint- receive iff’s said cattle over its road plaintiff unless agent would sign said thereby comрelled to sign wherefore says he same; contract was obtained under *4 duress of circumstances, and is therefore null and and plaintiff void, is not thereby.” bound pleading appellant
Under this contends, that inasmuch as the ex ecution of the contract was admitted by required appellee, was not produce the original upon the trial in the court below. We incline opinion that the genеral denial interposed by appellee required production of the original inor case of instrument; neces loss, proof sitated of its Wilson, execution and contents. Erskine v. Robinson v. 438. The Brinson, right the de Texas, interpose fendant to plaint different and even inconsistent answers iff’s cause of action repeatedly has been recognized State, principle announced in the emphatic most terms that one of these pleas can not used destroy Sayles’ be the other. See Plead edition of for ing, section full discussion and 1893, 418, citation authorities.
To give appellee’s special plea by appellant effect contended for certainly deprive would have the effect to him of the benefit of his general denial We do not altogether. understand the case of Bosse v. 24 Southwestern to be in conflict with Cadwallader, Reporter, 801, MoAntjlty. F. W. & D. Ry. y. 0. 1894-1 expressions be view, although must conceded that there are used lead might that casewhich to different conclusion. judgment the court belowwill be the cause re- reversed, manded.
Reversed and remanded. 1894. April Delivered MOTION FOB REHEARING.
ON Appellee, in his motion for HEAD, rehear- Associate Justice. that we ing, applicable holding insists erred statute of limitation to the cause action asserted him herein, his contention being that article 3207 the Revised Statutes, provides, that “Every other than for the of real estate, for which no limitation is otherwise prescribed, brought shall within four years next right bring after the the same shall have accrued, and not af- terwards,” is force this State which has appli- cation facts this case. We not agree with this.
Article 3203is as follows: “There shall prose- be commencedand years cuted within two after the cause action shall have accrued, and not or afterwards, all actions suits court of following scription: for injury Actions done to the prop- estate or erty of personal another. Actions detaining personal another, converting property to one’s own use. 3. taking carrying Actions away goods and chattels of another. 4. Actions debt, where the indebtedness evi- denced writing. a contract in 5. Actions open stated or ac- other than such mutual and current accounts counts, as concern the trade of merchandise merchant, between merchant and their factors agents.” of opinion
We are that the first subdivision this article embracеs by appellee petition. action asserted In Bear Bros. & Hirsch v. Marx Kempner, quoting after this ar- it is said: all ticle, prop- “These actions relate done to the erty party bringing estate the action. The first subdivision of this article doubtless include a seizure under attachment *5 out, wrongfully maliciously sued for it is evident that the actions spoken of of do not here mean such actions as techniсally are for in known, so this State there are no in, such distinctions or forms of, actions as are known at common law. The ‘trespass,’.as here in is used not used, any technical and sense, broadly, act of right violative which is done to his another, property.” estate or in
Mr. in Anderson, Dictionary, his Law defining word “tres- in both its restricted and in pass,” enlarged applica- and meaning, Texas Civil \%nd “In says: of that name, law actions tian different common any property. Its trespass on scope, widest of a legal infraction ‘transgressio,’ law-Latin synonym wrongs, forcible comprehends In this sense right. acts are tortious but also immediate, are direct and consequences.” in their as this in one a cause action such
While true that sense particular yet for the breach a common carrier for a violation car- in so as it far seeks in tort. it owes also sounds duty public, rier of the in his work Cooley, is well stated Mr. principle Torts, Railway v. Levy, Texas, 548; Railway 106. Also see pages 105, Roemer, Appeals, appellee’s petition this case are as follows: allegations plaint- on the 26th day heretofore, wit, August,
“That prior for a thereto had long been, iff and was, shipping points and cattle buying, selling, business еspecially other in the points States, certain northern to Chicago; during said time a cattle and defendant hire, the business of cattle to and from being engaged transporting and points Texas where its railroad also means ran, different especially place and lines to other to said connecting States, day named delivered to that on the said last Chicago; at a certain station aforesaid, as common defendant, said accepted there and Quanah, and defendant then and road, wit, on its * ** 358 head of fat beef plaintiff, fine, cattle; received from aforesaid, a common carrier as duty said violation did not, nor injure plaintiff, and to cheat and contriving intending and securely and within a reasonable and and expeditiously, would, do, aforesaid, bound to carry said cattle as was time, that the premises conducted contrary, negligently so itself and sufficiently properly were not were loaded into cars which cattle place and were while en route to said and not bedded bedded, all, off feet and thrown willfully negligently jerked and their destination and improper manner, run in an and reckless the train down, being they route and while were so placеs on said delayed, were at divers standing crowded and defendant’s delayed kept as aforesaid were of said they became, by reason cars, without food or so that water, bruised, sick, treatment, starved, cruel improper, negligent, depreciated reason greatly and otherwise injured, aforesaid, of the value died eight head of said thereof, wit, did negligently lost and defendant wholly plaintiff, and were that one keeping said cattle carelessly regard conduct itself thereof, the remainder aforesaid, escaped, head of the value they sick and starved that were so bruised, injured, cattle *6 189¿.] McAntjlty. F. W. D. 0. in
predated by they and were worth less head than worth they properly have had been carried been defendant as afore- in whereby plaintiff $2740.” lost and was damaged the sum sаid; plaintiff’s It will thus be action in this es- seen case is sentially one ex the breach on the of that delicto, appellant duty which it owed as a common for the carrier, rather than violation contract between it are of appellee; appellant if that, property appellee caused the in it alleged clearly manner this of a petition, guilty trespass within the of our limitation set forth above. prescribes
Subdivision 8 of article Bevised Statutes, which the in State, says: venue of suits this “Where the foundation the suit is some crime or offense or a civil in trespass which action the in may or lie, brought county the where such crime committed, trespass or in county offense the where the defend- ’’ ant In Campbell has his domicile. in Trimble, constru- '1 it ing statute, brought is said: suit was in the District Court ¡Navarro by Frank T. T. County Trimble, against W. Campbell, J. M. C. and W. who O’Connor, Hill, reside Dallas and Kit County, in Denton who resides Davis, County, Texas, the value by plaintiff, a certain colt and alleged owned been kicked on defendants’ horse the city Corsicana, fair the grounds, injury colt afterwards died. defendants objected jurisdiction murrer court, ground showed that them none of County. resided Navarro As trespass charged have been committеd county was the foundation of the suit, jurisdiction existed, and the demurrer was properly overruled.”
In Hill v. Kimball, Texas, 216, construing the “trespass” word quoted article, as used this last is “It said: is clear that unless this case be classed as a within the meaning term in provision quoted, improperly the suit was brought depends point Leon and the determination of that County; upon n the further whether word used in question, is the statute in its in a In its enlarged sig- most restricted or more sense. legal widest nification means In its violation law. most restricted sense intentionally signifies force, inflicted either person property signification another. But it has a still law more first, enlarged much narrow than the and more than the second and embraces all cases is done meaning given, per- son property, wrongful or to the result of indirect force. In 'Trespass.’ sense, Abbott’s Law would in- last Die., are persons neg- clude the result ligence of the and it seems to us more with wrongdoer; consonance purpose to hold that it this sense spirit Appeals Bepoets. Civil *7 presume be that it intended the word should understood. We that and not of injured party was made the interest of why should good and we see no a distinction be wrongdoer, reason one an from intentiоnal violence and injury resulting made between * * * think, from as we ‘tres- negligence. If, ’ pass statute was intended embrace not actions tres- our trespass pass but also actions law, as known proper, properly brought on the it is clear that the action this case case, jurisdiction per- the court had over the Freestone and that County, defendant.” son used in last case has been subse language
It is true that the the word quently restricted, “trespass,” in so for as construes statute, this is reason of its intimate associa our used venue Ricker, “offense.” Lee tion with the words “crime” and therein Saunders, Conner v. Shoemaker, how- "seem, in this case appellee’s The allegations upon his by appellant ever, trespass to show a have been committed cases; within the of the word as сonstrued these interpretation of this word as used opinion proper we are quoted correctly forth in the language our statute of limitation set no defined, Hill thus there can be Kimball, supra; done to question appellee’s suit is an action of understanding It property. certainly general has been the done to that in order recover profession, of direct the use either reаl or whether inflicted property, personal, must be commenced other tortious omission, force act no was the intention and we doubt years; within two of our statute. adoption Legislature in the former no error was committed We therefore conclude that rendered herein. ' 2 White & Millington Willson, The case v. Railway, here the views will thought expressed, conflict with far not be followed us. question here because was length, considered this
We have motion filed. byus until this brief otherwise suggested rehearing refused. motion will be overruled.
Motion May Delivered