133 S.W. 725 | Tex. App. | 1910
Lead Opinion
The action was originally brought by Johnson & Johnson (and other nominal and immaterial plaintiffs) against the Galveston, Harrisburg & San Antonio Railway Company, the Texas & New Orleans Railway Company, Morgan’s Douisiana & Texas Railroad & Steamship Company, the Illinois Central Railway Company, and the George R. Barse Dive Stock Commission Company for damages to a shipment of cattle, shipped from Sabinal, Tex., consigned to the last-named company at East St. Douis, Ill. About the same time Parr & Arnim filed suit in the same court against the same defendants, except the Barse Company, for damages respecting the same shipment. The two actions were consolidated. Johnson & Johnson and Parr & Arnim joined in the second amended petition, upon which and a trial amendment the ease was tried.
According to this pleading Johnson & Johnson alleged, in substance, that the Galveston, Harrisburg & -San Antonio Railway Company was the initial carrier of said shipment; that, after the cattle had been loaded and the contracts issued, they sold the entire 10 cars, containing 248 head, to Parr & Ar-nim, delivered on. the market at National Stockyards, Ill., at $4.40 per hundredweight for such weights and cattle as were delivered at destination. They alleged negligent delays in the transportation and bad treatment as the cause of the cattle losing flesh, and asked a judgment for the loss of flesh only, according to the market value of Saturday, June 20, 1908, it being alleged that reasonable dispatch would have had the cattle there in time for that day’s market; alleging, also, that had the cattle been delivered at destination, as they should have been, in time to be sold on Saturday, June 20th, they would have weighed at least 50 pounds more than they did weigh when sold and 50 pounds more than they would have weighed on Monday following, and would have been worth $4.40 per hundredweight, and, there being 24S head which lost 50 pounds each, plaintiff Johnson & Johnson sustained damage in the loss of 12,400 pounds at $4.40 per hundredweight, or $545.60.
Parr & Arnim alleged, in substance, the assignment by Johnson & Johnson to them, after the shipment and -after the execution
The defendant Galveston, Harrisburg & San Antonio Railway Company interposed demurrers to plaintiffs’ pleading, which were overruled. It pleaded general denial, and specially set up (2) that in the contracts it stipulated for limitation of liability to its own line and that there was no loss or damage on its line; (3) that the damage alleged, if any, arose from the vicious propensities of the cattle; (4) also, that the contracts provided that the cattle were not to be transported in season for any particular market, and were not bound to reach destination at any particular time; (5) that the contracts stipulated that they should inure to the benefit of all connecting carriers; (6) that at New Orleans new contracts were made with the Illinois Central for transportation of the cattle to destination and thereby this defendant was released; (,7) that plaintiffs’ actions are based upon Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1164), amending section 20, Act Eeb. 4, 1887, c. 104, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), and that this defendant carried the cattle to Houston, the end of its line, without damage or delay, and so delivered same to the Texas & New Orleans Railway Company, thus complying in full with its contracts, and is therefore not liable, but, if nevertheless it can be held liable, then said act is void, and that, if it is held liable for the fault or wrong of any of its code-fendants, they are liable to it for such sums and prayed accordingly.
The Illinois Central Railway Company and the Texas & New Orleans Railway Company pleaded similarly, and in the main adopted the above answer.
By supplemental petition plaintiff, demurred specially to the answer in respect to the limitation of liability on account of the provisions of the amendment of June, 1906, known as the “Carmack Amendment.” The demurrer was sustained.
The verdict was: “We, the jury, find for the plaintiffs Johnson & Johnson the sum of $505.50, and find in favor of the plaintiffs Parr & Arnim the sum of $179.17, both of said amounts against the Galveston, Harrisburg & San Antonio Railway Company. And we find in favor of the Galveston, Harrisburg & San Antonio Railway Company and the other defendants, and against the plaintiffs John Blanks, J. A. Millikin, C. M. Cullins, and G. H. Johnson. We also find in favor of the Galveston, Harrisburg & San Antonio Railway Company the said sums in the aggregate (the $505.60 and $179.17) and against the Texas & New Orleans Railway Company and Morgan’s Louisiana & Texas Steamship & Railway Company. And we find in favor of the Illinois Central Railway Company.” Judgment was entered accordingly.
The first assignment of error complains.of the refusal to charge the jury that Parr & Arnim having failed to show a right to recover a verdict should be returned against them. The propositions under this are (1) that they were strangers to the contract of shipment, and title to the cattle did not pass from them until they were delivered at destination, and, in fact, not until they had passed over the scales pt the time of sale, after which it was shown without question there was no decline in their market price, the only element of damage that could in any event be claimed by them; (2) that the undisputed fact was that the shipment could not have reached destination in time for the Saturday, June 20th, market, and any delay that happened did not proximately cause loss
Under assignments 5, 6, 7, and 8, it is contended that there was no evidence, and, at any rate, none that was competent or sufficiently definite fo enable the jury to arrive at a shrinkage in weight, due to the failure of the cattle to arrive in time on Saturday the 20th, and to plaintiffs having to keep same all that day and over Sunday for a later market, and that the judgment in favor of Johnson & Johnson is without facts to support, or is against the overwhelming weight of the evidence. We conclude that there was sufficient evidence that such cattle shrank 20 or 25 pounds per day, and, at the rate of 25 pounds for two days, the verdict in favor of Johnson & Johnson is supported.
The ninth assignment makes the point that the judgment against the Texas & New Orleans Railway Company is clearly excessive; it being liable only for the results of its own negligence, and the evidence showing no more than two hours’ delay on its line, and that this was not an unnecessary delay, and that by the undisputed facts the sum for which it might be liable was insignificantly small, and could not have exceeded one twenty-fourth of the judgment against it.
We find that there was testimony showing delays on the line of said defendant aggregating over six hours, and that this delay between Houston and its terminus, Lafayette, was the cause of the cattle being unloaded for feeding and watering at the latter place, and that otherwise the cattle could and would have been carried on to New Orleans within the 30-hour limit before being so unloaded, which, if done, would have enabled the cattle to be taken from New Orleans to destination within 30 hours, and dispensed with the necessity .of their being again unloaded and held at Canton, Miss., by the Illinois Central, and that, therefore, the proximate cause of the shipment not reaching destination in time for the Saturday, June 20th, market, was the delay on the line of the Texas & New Orleans Railway Company. There is no complaint of the judgment by the defendant Morgan’s Louisiana & Texas Railway Company, and its status is not considered.
The tenth assignment complains of the refusal of a charge which was, in effect, that, in case the jury found for plaintiffs or either of them, to state in their verdict which defendant or defendants they found against, the amount found against each defendant, and in the separate items what the damage found was for, whether for loss of weight, decline in market value, or injury to the cattle other than loss of weight. The proposition under this assignment is: “Defendants each carried the cattle as independent carriers. They were neither partners nor joint tort-feasors, and were in any event under the law entitled, upon request, to have the damages apportioned.” The requested charge had no reference to recovery or apportionment of damages as between the defendant lines, hence the proposition is not germane to the assignment.
This disposes, also, of the eleventh.
The requested charge which is the subject of the fourteenth assignment is as follows: “You are further charged, gentlemen, that should you find and believe from the facts that the cattle were transported with reasonable speed and dispatch from Sabinal to Lafayette, and that upon arrival there the time limit of 36 hours to feed, water, and
The fifteenth assignment complains of the refusal of a lengthy charge dealing with matters the defendants say they were entitled to have considered in arriving at the time reasonably required in moving the cattle to destination and matters excusing delays or stops in which charge it was expressly stated that they were not required to dispatch these cattle by special train over their lines if there was less than a train load of them. There were 10 cars in this shipment, and from the testimony, so far as pointed out to us in the briefs, that number of cars constituted a train load. Therefore the charge would have been on the weight of evidence in this respect at least.
The sixteenth complains of the refusal of this charge: “You are further charged that all time reasonably necessary to feed, water, and rest the cattle, including time reasonably necessary to load and unload, and all time consumed in changing engines and crews at division points, as well as all time consumed to take water and fuel, and to meet and pass trains, or for any other purposes, if any, that was reasonably necessary for any and all such purposes, cannot be considered by you in this case as negligent delay, but all reasonable time that the facts show was so consumed for any such purposes must be excluded from the aggregate time of transportation on each line.” It was a contention of plaintiffs that only one stop for unloading and feeding, etc., was required between Sabi-nal and East St. Louis, and there was evidence warranting a finding that the stop for that purpose at Lafayette after the cattle had been out something over 30 hours, instead of going on to New Orleans within the 36-hour limit which might have been done, was responsible cause of their having to undergo another stop beyond New Orleans for that purpose. The above instruction would have told the jury that all reasonable time consumed for such purpose must be excluded, which would have included both stops.
The seventeenth assignment complains of the refusal of this charge: “You are further charged that, in estimating the rate of speed made and the time consumed by any one of the carriers, you will take into account the entire run, from one end to the other of that company’s line, and average up the time and distance excluding reasonable time for stops and other necessary delays — that is to say, should you find that on one part of the line there was negligent delay, and should you further find that the same or any part of such delay was made up by extra good speed, this should be credited, and the entire run, from one end of the line to the other, should be averaged, and the question whether or not there was negligent delay thus arrived at.” The brief in connection with this assignment does not state that there was evidence to warrant this instruction, nor what the evidence was which was relied upon as supporting it.
The eighteenth complains of the court admitting in evidence parts of the bills of lading because of variance. The bill shows that plaintiff offered in evidence five bills of lading of two cars, each of which were met with the objection that they were not the contracts sued on and described in the petition, in this: That the suit is based on contracts • to carry the cattle through from Sabinal to the National Stockyards, Ill.; whereas, the contracts offered are contracts to carry no further than the end of the Galveston, Harrisburg & San Antonio Railway Company’s line, or to New Orleans, La. In the amended petition, in the second paragraph, the allegation is that the Galveston, Harrisburg & San Antonio Railway Company received the cattle for transportation from 'Sabinal, Tex., to National Stockyards, Ill., and as the initial carrier issued its bills of lading or contracts of carriage for said cattle, which contracts were in the hands of defendants, who were notified to produce them, and in the third paragraph that after they had been so received by the initial carrier, and after it had issued its bills of lading or contracts whereby it agreed to transport said cattle from Sabinal to National Stockyards, Ill., Johnson & Johnson sold the cattle to Parr, and in the fourth paragraph that after the first-named carrier had received the cattle for transportation from 'Sabinal to National Stockyards, Ill., and had issued its bills of lading or contracts of carriage as aforesaid, it became its duty, and the duty of every defendant over whose line the cattle would have to be transported from Sabinal, Tex.,, to National Stockyards, Ill., as common carriers, to handle same with reasonable care and dispatch over their respective lines from
The nineteenth is that the court erred in refusing to charge that as to the Texas & New Orleans Railway Company plaintiffs have all failed to show a right to recover, and therefore to find in favor of such defendant. The proposition is that “it appeared, as a matter of law, that no delay occurred on the line of the Texas & New Orleans Railway Company, and, if any, it could not have been cause of any damage to Parr & Arnim.” This is overruled, having been sufficiently discussed.
The twentieth complains of certain testimony, concerning which no bill of exceptions appears on the record.
We come to the twelfth assignment of error, which complains of this charge: “If you should find a verdict in favor of Parr & Arnim, you will assess the damages, if any, at the difference in the market value, if any, per hundredweight of said cattle on the market at East St. Louis (National Stockyards), Ill., at the time they should have arrived at said market and in the condition they should have been in but for the negligence, if any, of the defendants who transported said cattle from Sabinal, Tex., to New Orleans, La., and their market value per hundredweight on the said market at the time they were sold, but in estimating the difference, if any, you will only estimate the damages, if any, by the deterioration, if any, in value on account of bad appearance, if any, and decline in market, if any, of the said cattle brought about by the negligence, if any, of the said defendants, and let your findings be separately made in your verdict as to plaintiffs Johnson & Johnson and Parr & Arnim, if you find for plaintiffs in either case.” This charge is complained of because it is nowhere claimed in the petition that Parr & Arnim sustained any loss because of bad appearance of the cattle. The petition shows that the damage which Parr & Arnim claimed was solely from loss in value. The charge authorized recovery from that, and also for bad appearance of the cattle. There was evidence of bad appearance necessarily from the treatment some of the witnesses say the cattle received en route to .New Orleans. The charge entitles defendants to have the verdict in favor of Parr & Arnim set aside, unless the evidence is such as to show that the inclusion in the charge of damages for bad appearance has not prejudiced defendants. The testimony on the values appears to have been that of witness Simeock, and, so far as the briefs show, this was the only testimony on the subject. His testimony was conflicting as to what the cattle would have brought if they
The twenty-first assignment, which claims that a charge should have been given which directed a verdict for the Galveston, Harrisburg & .San Antonio Railway Company, is overruled.
The twenty-second is overruled, as in our opinion the federal act referred to and upon which plaintiffs’ right to recover against the initial carrier is not unconstitutional, as in its effect taking its property for a private purpose, without compensation, without due process of law, and as denying it the equal protection of the law. The said act is sustained in all its provisions, and this leads to overruling of the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth assignments. Ry. v. Piper, 115 S. W. 107; Ry. v. Crow, 117 S. W. 170; Ry. v. Wallace, 117 S. W. 169.
The appellants contend that several of the refused charges, if incorrect, entitled appellants to have their substance given by correct charges framed by the court. The charges were not of the character which operated as requests for a correct charge submitting an issue.
There is no merit in the suggestion of ap-pellees that the motion for new trial was not filed on time. The trial judge, for reasons which do not appear, but presumed to have been sufficient, entertained the motion and overruled it.
The testimony so clearly exonerated the Illinois Central Railway Company from any negligence that the trial judge directed a verdict in its favor. The correctness of this instruction and verdict is not questioned on this appeal. Nor is the judgment complained of wherein it disposes of certain nominal plaintiffs.
We conclude that the judgment in favor of the Illinois Central Railway Company should be affirmed, and that the judgment in favor, of Johnson & Johnson against the Galveston, Harrisburg & San Antonio Railway Company, and the recovery of the Galveston, Harrisburg & San Antonio Railway Company over against the Texas & New Orleans Railway Company and Morgan’s Louisiana & Texas Railroad & Steamship Company for the same amount and for costs should also 'be affirmed. And that the judgment in favor of Parr & Arnim should be reversed, and that portion of the case remanded for a new trial between them and the defendants except the Illinois Central Railway Company, and, further, that that part of the judgment which disposes of the nominal and immaterial plaintiffs J. A. Mini-kin, John Blanks, C. M. Cummins, and G. H. Johnson, the same not being questioned on this appeal, should be affirmed, and it is so ordered.
Affirmed in part. Reversed and remanded in part.
Rehearing
On Motions for Rehearing.
The motion by Parr & Arnim is overruled, and in this connection it is advisable to state, in view of another trial, that, even if Parr & Arnim had claimed damages for bad appearance of the cattle, they would not have been entitled to recover for such item. Their cause of action would be for loss in value only, as this is explained in the main opinion.
Referring to the twentieth assignment of error, we find that the bill of exceptions was made a part of the record by agreement. The testimony objected to was subject to the objection that the witness admitted that it was partly from records, partly from his knowledge of actual conditions, and partly from knowledge derived by him from experience and observation as a railroad employé, without indicating what he had derived from one source or the other, nor did he indicate by his testimony that the records were correctly kept.
The motion of appellants is likewise overruled.