*1 F. BY. CO. BOGEB Tex.) 0. S. stip cape, ulation from such trans carrier was not relieved nevértheless
fact,
ferring
the effect
it had
liability therefor.
pay
obligation
to
debt
to
its
Carriers,
cases, see
[Ed. Note.—For other
App.
Grayson,
Neely
Tex.
Civ.
Oakes.
513,
933-949;
Dig.
674-696,
Dec.
Cent.
§§
Capps,
559;
Putnam
Dig. § 218.*]
Mor
App.
Hudson v.
610, 25 S. W.
Civ.
Appeal
(§ 1056*)
and Error
—Harmless
Judgments, §
;
riss,
2 Black
595
Evidence.
Error —Exclusion
from the cars
Where cattle
they
shipped
the carrier’s
which
were
reason of
Nujm purchased
from Oakes
the debt
When
proper
negligence
cars and
furnish
to
thereto,
he’
got
the fact that
the title
securely
same,
reason
to
fasten
purchased
bank
debt the
knew when he
shipper
of
and
failure
to examine
property
prejudiced
fastenings,
garnisheed
as the
same
was not
the carrier
provision of
a
the
court’s
exclusion
ownership,
change
Campbell
did not
requiring
shipper
shipping
amine
fastenings.
contract
ex-
acquired from
Nunn’s title
would
defeat
report any
cars and
in the
defects
before
Oakes
Oakes which had vested
garnishment.
see.Appeal
cases,
[Ed. Note.—For other
Dig.
Dig.
Error,'Cent.
4187-4193,
Dec.
§§
unnecessary
regard
to dis-
it as
1056.*]
§
assignments
detail.
cuss the
(§ 227*) Transportation
5. Carriers
conflicting
sharply
as to
—
evidence
Bedding
Animals —
Cars.
was,
fact,
trans-
indebtedness
whether the
ferred
injured
plaintiff’s
Where
Oakes,
by Campbell
whether
alleged
cars,
shipping
the
bed
result
a failure
the
the
beneficiary
judgment,
pleaded
Oakes
carrier
was the
agreed
shipper
to bed
contract that
the real
and whether he was
allege
cars,
carrier was
but did not
Campbell
party.
nominal
suit
duty
exempt
from its
do
under the contract
having
fact,
put
conflict
shipper,
resolved the
trial court
undertook
so or that the
bedding,
for
was defective
finding in the
contention,
in
nothing
favor of Nunn’s
shipper
failure to
given
cars were not
the
further
would authorize
in the record which
so,
that,
opportunity
to do
reversing
finding,
inus
trial court’s
as we
properly bedded,
shipper’s
default.
view the
should be affirmed.
cases,
Carriers,
[Ed. Note.—For other
see
Affirmed.
Dig.
232, 953-956;
Dig.
§§
Cent.
Dec.
§ 227.*]
Transportation
—
(§ 218*)
6. Carriers
Bedding
Cattle —
Cars.
GULF, C. & S. F. RY. CO.
al. v. BOGER.
et
transport
Where a carrier furnished cars to
633.)
(No.
plaintiff’s cattle, and undertook to bed the cars
with sand before
cattle were
loaded or the
(Court
Appeals
of Texas.
Civil
Amarillo. shipping
signed,
it could not thereafter
June
1914. On Motion for Rehear-
rely
subsequently
on a
of the contract
1914.)
ing,
Oct.
shipper
cars,
executed
bed
liability
in order to
relieve it
for
failure
(§
209*) Transportation
of An
1. Carriers
—
provide proper bedding.
Duty to
imals —Suitable Cabs —
Furnish.
cases,
Carriers,
[Ed. Note.—For other
see
A
furnish
carrier must
cars suit-
railroad
Dig.
674-696, 927, 928, 933-949;
§§
Cent.
Dig.
transport
shipment,
Dec.
cattle offered for
able to
liability
§ 218.*]
fail-
it cannot
itself
shield
duty by proving
perform
-to
such
(§ 22*)
7. Venue
of Suit —Action
—Place
shipper agreed by
shipment
Against Carriers — Breach of Contract-
reject
inspect
cars furnished
them if
Conversion.
improper.
purchased by plain-
Where certain cattle
cases,
Carriers,
[Ed. Note.—For other
see
D.,
having
placed
tiff from
in cars
Dig. 925;
Dig. 209.*]
Cent.
§
§
Dec.
transportation,
permitted
escape
negligence, and,
ears
from the
having
the carrier’s
Shipments—
(§ 147*)
2. Carriers
—Domestic
ranch,
returned D.’s
to sur-
refused
Liability
Common-Law
— Limitation.
demand,
render them to
the carrier
such act
Texas,
a common
statute
carrier
did not render him a
to the carrier’s con-
not limit
contract its common-law
;
hence,
by plaintiff
tract
in an action
shipments,
can
domestic
nor
it contract to
transportation contract,
breach of the carrier’s
relieve
from its common-law
itself
D. could not be
to answer in
damages
servants.
negligence or
due to its
that of its
other than
which he resided
or in which the
conversion occurred.
cases,
[Ed. Note.—For other
see
cases,
Venue,
[Ed. Note.—For other
see
Cent.
Dig.
646-648;
637-640,
§§
Dec.
§ Dig.
22.*]
Dee.
147.*]
Rehearing.
On
Motion
— Transportation
218*)
(§
3. Carriers
Transportation
—
(§ 227*)
Animals —Defective Oars —Carrier’s Lia 8. Carriers
bility.
Injury
Live Stock —Notice of
—Variance.
transportation
pro
In an action
Where a cattle
carriers
inspect
of,
shipper
cattle,
vided
furnished,
and
for loss
all
the cars
the de-
they
fendants
see that
introduced the
fastened
journey,
report any
for the
sufficient
itial
days.
therein,
of claim
should
answer
tice
within
within 91
ineffective
prop
to relieve
of two of
the carrier of
to furnish
the carriers set
that the no-
exempt
presented
er
or to
it from its
common-lawob
ligation,
days,
if,
result
but did not
that such de-
agents,
separate
of the
were not
made
carrier’s servants
fendants
contracts from
securely
pre
the initial carrier. Held
furnished
fastened to
such de-
having alleged
vent the
did es fendants
did not ae-
Key-No.
* For other
eases see same
and section
Series &
NUMBER
*2
(Tex,
169 SOUTHWESTERN REPORTER
any damage that,
cept
issued
regarded
necting carriers,
arts.
contract
acquiesce
for,
may
in
liable
to the
occur
any
by
any
stock
of
be
such bill would
account of
the car
reported
of each and all
com
which were not
so
to the
by
1911, pany’s
provided
agent writing.
shipper
Rev.
fur
said
The
allegation
agrees
713, 732;
securely
ther
hence
and
to see that the
are
fas
cars
days
prevent
fol- tened
for notice within 120
so
there
the
not hold the
of stock
by
calling
proof
company
from
lowed
a contract
for 91
and
will
re
re
he
sponsible
any
notice,
damage
constituted a variance.
loss or
neglect
part
sult from a
failure or
on his
cases, see
Note.—For other
TEd.
agents
employés
agrees
do,
so
227.*]
to assume all
risk
of or to
loss
any
cars,”
said stock
because
defect in said
Appeal
County Court;
T.W.
from
etc
.
Allen, Judge
railway
alleged,
company
The defendant
Gulf,
against
Action M.
escaped
that “if said cattle
cars
Railway Company and
&
Fé
Colorado
Santa
loaded and there was a defect
Judgment
plaintiff,
others.
and defend
the car or
cars
the time
appeal.
ants
reversed
Affirmed in
loaded,
denied,
pro-
which is
then under the
part. Rehearing
denied.
responsible
visions of said contract
it is not
Tay-
Barwise,
Thompson
Worth,
&
of Ft.
therefor,
plaintiff
recover,”
cannot
Humphrey,
Henrietta,
E.
&
H.
lor
shipper
that it was the
er such
the cattle
of the
to discov-
appellants.
Hoover,
Canadian,
Wood-
defect,
any,
if
loaded and
both before and after
Coleman,
appellant
Baker,
&
ward
at all
while
times
Parrish,
Henrietta,
&
Dunman. Wantland
for
route,
en
and that his failure to do was
appellee.
proximate
loss,
the
any.
if he suffered
alleged
is further
that under the
appellee,
Boger,
HUFF,
C.J. M.
express provision of the contract
that it was
brought
against
&
Pecos
Northern
suit
expressly agreed and understood in
case
Railway Company,
&
the Abilene
Texas
shipment
over
line or
lines of
Railway Company, the Ft. Worth
Southern
carriers that the
of the contract so
City Railway Company,
and the
&
entered into should inure to
their benefit
Railway Company.
Valley
Wichita
plain-
to have'full
force
effect as
appellee
hy
is sub
cause of action
tiff.
shipped eight
stantially
cat
cars of
he
remaining
Each of the
Vernon,
Jolly, Tex., and to
Novice
tle
companies adopted,
main,
depreciated
alleges
cattle were
tie
of
pany;
&
Northern
Com-
Pecos
value on
account
Rail-
the Ft. Worth
Denver
a
&
companies
improperly
defendant
bedding
way Company setting up
contract,
handling
improperly
the cars
it made with
to the effect
transit,
delaying
same while in
them
that he should
notice within 120
beyond
ordinary time in mak
the usual and
after the
was received as a condition
shipments,
alleges
tie
that one
said
precedent
sue,
to his
etc.
killed
of
negligence,
animals was
en route
answer
to the
Southern Rail-
Abilene
lost,
head
and way Company,
Theo.
Dunman answered
damages for the value of
asked for
the 15 plea
special privilege
sued in
depreciation in
the value of
the county
residence,
be noticed later
aggregating
remaining,
the sum of $994.
opinion.
on in the
answered,
each
urged
It is
first
of error
Railway Company
the Abilene Southern
presented by
appellants
brought
in or made a
Theo. Dunman panies that the trial court was in
in ex-
allegation making
the suit. The
cluding
paragraph of
Pecos North-
opinion.
later in
will be noticed
ern Texas
set out in the
Northern Texas
Com-
appellee objected
answer of that road. The
general denial, etc.,
answered
ground
to its
introduction
the
requirements
that to hold
following provision
further set
plaintiff
be
shipment:
illegal
unreasonable and
and an
liability,
re-
undue
shipper agrees at his own
“The
cost and ex
striction of
carrier’s
pense
properly bed the
'in
cars
which the
transported
portion
respects
pleaded
in all
stock are to be
contract so
put
shipment
them in
condition for
of violation of the carrier’s
liabil-
agrees
stock,
and also
that before
ity ; that
the cars furnished
were shown
transported
in which said stock are
leave
only
railway,
caréfully
cars furnished
that will
the first-named station
ex
same,
that if
amine
defect or defi and
were fastened
the carrier or
ciency
whatever be found
said cars employés,
request
the carrier’s
and no
report
agent
fact
at once
station
plaintiff
ever made that
see to the fasten-
company
writing
and demand
another
ings,
inspection
thereof,
bedding,
cars;
shipper
car or
and if
lieu
shall fail to make such demand it shall
then
and that the contract was immaterial
ir-
conclusively presumed that said cars and each
relevant.
It will
noticed that the contract
respects
in all
them are
suitable for the requires
shipper
to see that the cars are
transportation
agrees
stock
assume,
securely
carefully
company
fastened,
inspected,
and not hold the
Key-No.
* Forother cases see same
and section
NUMBER Dec.
Series
Tex.)
C. & F. RY. CO. v. BOGER
to examine
to the station
loaded,
the
if the
ing
the
There
lene Southern
rington, fering tion venue man, having sion of the ture of the ing they tion. This institution upon utes. serted upon Dunman and could not therefore be fixed while in the actual court to so Taylor years, or for scription, who afterwards testified that further shows that miles from Dunman’s on al sufficient the trial he found action companies they Coleman from Dunman. sufficient statement the the this be sued in either He dence is uncontroverted stitution these the the cattle positively Dunman few weeks ground believed Shortly dump, evidencing to his and took Plaintiff party. upon delivery, (N. cattle questions jury, assigns a breach thereof would would be county. the breach of a written had contracted to deliver. refusal cattle, and was with Article S.) place the conversion county, around the thereafter wrongful county, to the best to render requested cite and at all under them the ranch. The evidence If failure of the 437; Angle who is shipped, identifies some to deliver Boger cattle; charge, ground suit, railway company, such error find for his he is liable further stated afterwards, and claimed willfully or cattle of the court to involved not 1830, cattle that he contract, by him. The venue and that Dunman residing performance and resided there suit, then the possession based his tracks This, a suit Coleman suit. must cases of sufficiently upon and 3 conversion if Tuscola judgment Rep. 914; passing track, support that of subds. 14 pleadings others such parties of his ranch. in Dunman’s converted the cattle could be the *5 perhaps, answering there at constructive plea at a the refusal Railway, that Tuscola is the court instruct others in the lane. defendant state parties 5 or 6 investigating fixed or Raymond had was seen unlawfully right 4, assigns testimony grant times since the all, damages, of cattle which judgment against of cattle from sued in the identified, Taylor county. of Dunman, place Lytle this contract contract, and facts for some 30 making about seven privilege he is liable of the suit will be participat man on that Dun-' head, purchased resides a 151 U. S. at the says examined their de- error the stat 62 R. contract recovery proposi right new himself Clearly time present v. Gal driving appeal. posses on the him in of as his is not inter based R.L. L. Yar came some him evi- na tri- up- ac as in- in to in in a statute. in bring panies cannot, in a pass. pany venue to either instructions to man’s clearly 92 ed visions 4 he county court should ror, sit.” 472. was based age the Dunman’s residence. be companies the market as right & only by him, such 60 Tex. the has been promise wronged disposing sence structed Smith, pose convert leged trespass. causes are order ed have instituted his suit Dunman’s fix of admit against contract for however, they “In this Affirmed in The suit was not instituted Denver Tex. suit, successfully Clay done affirmed as to so compel obligation pleads that one of the alleged trespass, defendant is not 342, a contract. In Sup. to sue Simkins to recover he upon In residence, quasi Dunman for venue 284, is inferred which to waive the tort and sue county. it 625; Railway loss, injury, On Behrens sue taken, case 4 order to entitle the railroad of the second suit, and reversed residence Ct. City upon plea a different contract to the one S. W. 48 S. contractual elements. The Motion for to restore to the true owner what original laid as contract there is an entire ab- residence, 25, jury have, on Contracts the use defeat privilege the trial court to a condition that the setting up pay, the defendant some clause named Taylor a different damages, a art. We do not, 'it must Boger having Drug Boger against delivery If law of,the and reversed appellants, privilege. had a cause would have to answer causing it out 1830, or to Coleman L. suit where opinion, Dunman’s we have found for Dun- implies against delay, his county. had or of the county, as to joined, Rehearing. Ed. venue, of this the intention is to Ft. We hold Holloway tort-feasor. think, permits and further of action other than Dun- residence and to county in this case. precedent v. bring been tort, set etc., Worth, think the two Dunman, Hamilton, the Ft. Worth we breach therein Sales evidence, by Boger Mangum, under subdi- sued in the failed to so In the case obligation change decline county cannot be its cause stated, in the part. case v. was the of the place contend- a brought (3d Ed.) assump- his will requir- the al- Blum, action cause, there- venue when party dam shall com- stat- with tres- pur- etc., laid in- er If, 68 to of a (Tex. 169 SOUTHWESTERN REPORTER connecting such common carriers. It will to. sworn ed that plea be noted the defendant error. this statement joint- .plea Ft. Worth & Denver does was made was sworn ly Company Railway independent City out was original Valley Railway contract made the initial car- Wichita rier, excepted appellee Boger Company. introduced in evi- providing reply (a) not dence does Because the this answer: stip- clearly allegations tending from the such a variance to show that state'facts reasonable; City, of the Ft. Worth Denver that and this contract was in said ulation quoted (b) road does not it on one the said because answer, shows-upon blanks, its bills face defendant’s said agent independent general freight new or a originally such no- entered into car- to waive auditor of said rier, simply alleges tice, does not show that was made and said answer given. for a consideration before The court sus- valuable the trans- such waiver was portation exceptions, out that of said cattle was undertaken and struck tained these part answer. court was defendants. proven exceptions made, sustaining Under the facts as under the error in pleadings, question as condition in an error which we find the is: Was' showing we hold that was no case? The contracts of there will reverse the exceptions Boger sustaining between M. W. ment were made Com- to Ft. Worth & Denver Pecos Northern Texas Company’s January 1913, Novice, a station answer. that We contracts bound have concluded that on that road. The motion should to deliver be overruled. carriers road and the the cattle Boger eight of M. W: *6 — Jolly, County, Tex., four cattle —at cars at PECOS & N. T. RY. etCo. al. v. MORRISON. Vernon, Tex. The consideration (No. 646.) provided stated therein and contracts (Court Appeals of Civil of Texas. Amarillo. apply should and inure to that the benefit of each their terms July 4, 1914. On Motion Rehear connecting carrier, and 10, 1914.) ing, Oct. companies join- of the defendant all ed op (§ 218*) Transportation 1. Carriers — introduction these contracts. Liability Live Stock —Limited —Statutes. Railway City forbidding & Denver Com- common statute carriers to limit or any common-law restrict their ship- delivering pany in both carrier was the making special manner, agreement ments, Railway Pecos & Northern Texas void, applies in contravention thereof to the initial carrier. transportation tract, attempting bility stock; live hence a Railway relieve a carrier lia- Com- & Northern Texas The Pecos injuries hogs overheating, pany’s provision, contracts had a due to carrier’s to flush up give failure of notice and set in by Boger hogs the come cars with water before be- n Upon exception overheated, therewith. accordance invalid. cases, Carriers, [Ed. Note.—For other see stricken out. There 674-696, Cent. Dec. assignment briefed to this action of is no Dig. § 218.*] statement shows the court. The of facts — Transportation (§ 215*) 2. Carriers companies in- that all the Liability. Live Stock —Common-Law bill & Northern Texas troduced the Pecos lading, exception provided by,Rev. With the St. 1911,. lading (now 714), bill of so introduced art. 326 Rev. St. art. authorizing per a carrier to contract provides notice during shall his live feed and water stock claim for exceptions transportation, and writing within 91 God, where loss occurs from act of owner, animals, vice of the act of the Ft. Worth & occurred. The answer ,or public enemy, for which the carrier Railway Company Wich- Denver ita .the responsible, is an insurer of not transportation the safe Valley Railway Company animals delivered carriage. given cases, days. see [Ed. other presented Note.—For The answers Dig. 215.*] § roads do these two — Transportation (§ 211*) Carriers separate contracts that entered made amages gs Live —Ho —Overheat Stock —D Pecos Northern Texas ing —“Feed and Water. ” Company, initial carrier. think that (now Rev. art. 326 Rev. St. conveying 714), provides live art. stock sit carrier its an- the Denver during the same must feed and water tran having swer, accept failed to it did not is delivered con same until the acquiesce in the special signee, unless otherwise Held, Northern “feed executed and wa contract. ter” mal as tions, words. necessities of the ani the internal refer to Company, that articles 731 sustenance, applica to external and not S., apply, R. and contracts C. injury produced by as an avoidance the initial carrier will cars; unventilated climatic conditions n in a hence the contracts of each deemed to be Key-No. Series Deo. same NUMBER in * For other cases see section