172 S.W. 195 | Tex. App. | 1914
Appellee, Texas Packing Company, brought this suit against appellant to recover damages for failure to properly ice, care for, and preserve five shipments of dressed poultry, originally shipped from Temple, Tex., to St. Louis, Mo., but, by subsequent agreement, carried on to Chicago, Ill. Appellant impleaded the Wabash Railroad Company, and sought to recover over against that carrier. There was a jury trial, which resulted in a verdict and judgment for the plaintiff against the appellant, and that the latter recover nothing as against the Wabash Railroad Company, and the case has been brought to this court for revision.
Counsel for appellant have filed a brief which presents many questions, none of which is novel or difficult, and some of which it is not entitled to have considered, because they complain of the action of the trial court in refusing to give certain requested instructions; but the record fails to show that appellant reserved any exceptions to the rulings referred to. The case was tried after the act of the Thirty-Third Legislature, which requires a complaining litigant to except to the action of the trial court in giving or refusing instructions, had gone into effect. The record shows that appellant reserved certain exceptions to the charge given to the jury, but does not show that any were reserved to the action of the trial court in refusing to give requested instructions. The statute referred to declares that a failure to except to the action of the trial court in giving or refusing instructions shall be regarded as a waiver of objections thereto. Crow v. Childress,
The case is similar in many respects to M., K. T. Ry. Co. v. Texas Packing Company,
The verdict of the Jury is amply supported by testimony, and we, therefore, make findings of fact to the effect that appellant breached its contract of shipment, as alleged in appellee's petition, and that, as a result of that breach, the property which was shipped was injured and damaged to the extent found by the jury, and that the proof failed to show that any of the damage referred to was caused by the Wabash Railroad Company. Hence we overrule all the assignments of error presented in appellant's brief, and order an affirmance of the Judgment rendered by the trial court.
This case was submitted at the last term of this court, and has been held under advisement on account of the fact that an application for writ of error in the other case above referred to was pending in the Supreme Court. The magnitude of that court's application docket is such that we do not feel justified in longer delaying a decision of this case.
Affirmed.