74 Tex. 8 | Tex. | 1889
The several phases of the leading defenses upon which appellants rely, presented by the different assignments, are substantially that there was no proof except the contract under which the stock was shipped at Franklin, Kentucky, that the agent Jenkins, who executed it for the Louisville & Nashville Railroad, was the agent of defendants or had authority as their agent to execute the same.
That there was no proof of any arrangement in the nature of a partnership existing between said company and defendants, or that the defendants’ road connected with said Louisville & Nashville Railroad, or with any line with which it connected; that under the stipulations in the shipping contract the plaintiff assumed all risks of loss or damage from delay or detention of the stock caused by mobs, strikes, etc.; that the jack for the loss of which defendants were sued was never delivered to, them.
That a strike was pending on the St. Louis & Iron Mountain Railroad at the time of the arrival of said stock at Little Rock, Arkansas, and said
The defense with respect to the absence of proof by plaintiff of the .authority of Jenkins to execute as agent for the defendants the contract sued on, is involved in the assignment that the court erred in refusing to permit the defendants, on cross-examination of plaintiff, to inquire whether Jenkins, who signed the contract on which the stock was shipped, was the agent of the defendants, and whether any running or other arrangements as to through shipments existed at the time of the execution of the contract by which said defendants, or either of them, would be bound "to carry out the terms of said contract. The question was objected to by plaintiff on the ground that there was no plea verified by affidavit denying the authority of said Jenkins to execute said contract, and there was no such denial of the partnership or running arrangements alleged by plaintiff to have existed between the defendants and the contracting carrier and connecting lines constituting the through route. The objection was sustained and defendants excepted.
The argument of the appellants is that the contract upon which the suit is founded does not purport to be executed by defendants nor by any one purporting to have been their agent, and in this connection it is contended that if it can be so construed that no recovery can be had for any loss not occurring on defendants’ road, in the absence of affirmative proof that said Jenkins was not the common agent of defendants and the Louisville & Nashville Railroad, or that there existed at the time a partnership or running arrangement as to through freight of such character between.said road and defendants as would render the latter liable.
The effect of a plea of non est factum and the failure to file it under the statute was referred to in Bradford v. Taylor, 61 Texas, 510, and in City Water Works v. White, Id., 538.
In the last mentioned case the statute providing that “a denial under oath of the execution by himself or by his authority of an instrument in writing upon which a pleading is founded, in whole or in part, and charged to have been executed by him or his authority/’ etc., was discussed and construed, and the cases collated in which it had been also previously construed.
In the case cited it was held “that the fact that the instrument was not free from ambiguity and did not clearly purport to be the act of the defendant did not take it out of the operation of the statute.” It appears from the pleadings in the present case that the suit is founded upon
There was no denial of this plea verified as required by affidavit, and there was consequently no error in the action of the court complained of. Neither was there any such denial of the partnership which was charged by the petition to have existed at the time of the shipment of the stock between the receiving carrier, the defendants, and other connecting roads constituting the through line between the place of delivery (Franklin, Kentucky) and the point to which the stock was to be transported (Georgetown, Texas). Such being the case it did not devolve on the plaintiff to make affirmative proof of either the execution of the contract by the authority of defendants or that the partnership existed. If this was necessary in the shape of the pleadings, the statute requiring both of these alleged facts to be denied under oath would accomplish no purpose. Its object is to require that these facts shall be put in issue by a sworn denial, and if this is not done in the manner pointed out they are admitted facts and not issuable; and if not issuable by reason of a non-compliance with the statute which prescribes the manner in which such facts shall be made so, there can be no occasion for proof of them, upon the elementary principle that a fact not made an issue by the pleadings is not necessary to be proven. See cases cited and Lindsay v. Jeffray, 55 Texas, 641.
But even if the burden of proof in this case was on the plaintiff to establish a partnership or joint undertaking between the defendants and the Louisville & Nashville Railroad as connecting carriers, this we think sufficiently shown by a through bill of lading or receipt from Franklin, Kentucky, to Georgetown, Texas, through freight charges, that the stock was to be carried in a designated car, which are said to be facts from which it may be inferred. Hutch. on Carr., sec. 152; Laws. on Carr., p. 357. To this may be added the further fact of the payment of the freight charges to the appellants’ agent at Georgetown. The liability of the carriers where there are connecting lines, and which carrier may be sued, has been the subject of much discussion.
The English doctrine is, that in the absence of a special contract the first carrier is liable to the destination—that he is exclusively liable; for want of privity of contract the connecting carrier can not be sued by the shipper even though his negligence caused the loss. One of the consequences of this rule has been to restrict the right of action against the first carrier, even though the loss or damage may have occurred through the fault or neglect of the one sought to be charged. But this rule as well as this consequence is rejected by the American cases, and is adhered to only by the Georgia courts. The American rule is in case of connecting carriers that the action will always lie against the carrier in whose custody the goods were when lost or damaged. Laws. on Carr., sec. 241.
Appellants offered to show by the depositions of C. H. Warner, S. D. Barlow, B. S. Johnson, and others witnesses “ that from about the 7th or 9th of March, 1886, when said live stock reached Little Rock, until about the 2d or 3d of April, 1886, a strike was pending along and over the lines of the St. Louis, Iron Mountain & Southern road; that during the existence of said strike no freight or live stock trains could be or were run over the lines because of the interference of the strikers and those acting in concert with them; which was excluded by the court upon objection upon the ground that a strike or other violent interference with the business of a railroad company constituted no defense,” etc. This is assigned as error.
The evidence on the trial was plainly to the effect that the damage occasioned by the injuries inflicted on the stallion occurred after the strike and while being transported over the def endants* road. This was assessed at $100, one-half of the value of the horse stipulated in the contract. The jack never having been delivered to plaintiff the value as stipulated in the contract in event of his loss was found ($200). The amount found by the court as damage for the loss of the use of the horse during the detention caused by the strike was $100. It is apparent then that the evidence offered by the appellants and the exclusion of which is assigned as error could have had no application to any other item of damage than that last mentioned.
That the carrier is liable for damages arising from the failure to transport the stock within a reasonable time is well settled. But what- is a reasonable time under the particular facts of the case or what circumstances will excuse the failure to deliver within a reasonable time the carrier would have the right to show in order to relieve itself of liability for this element of damage. The evidence offered to relieve the carrier of liability caused by the detention of the horse was that “a strike existed, during the existence of which no freight or live stock trains could be or were run over the lines by reason of the interference of strikers and those acting in concert with them.” This we think was admissible for the pur
If, as was proposed by the proof offered, it could be shown that “ no freight or live stock trains were or could be run over the road because of the interference of the strikers," it might have shown that the horse was under the circumstances delivered within a reasonable time or a sufficient excuse for the failure to deliver within such time, and in either event would have relieved appellants of liability for this item of damage found by the court—i. e., the “use of the horse for three weeks, $100."
We are of opinion that there was error in excluding the testimony offered upon this point; but as the appellee proposes to remit this amount, which alone could have been affected by the evidence referred to, and there being no other error, we think that upon such remittitur being entered the judgment should be affirmed in all other respects.
Affirmed.
Adopted May 10, 1889.
