176 S.W. 900 | Tex. App. | 1915
Defendant in error instituted this suit in the county court on the 1st day of August, 1911, to recover damages in the sum of $250 because of alleged injuries to 50 head of cattle shipped by the plaintiff from Maryneal, Tex., to Suffren, Ill., over plaintiff in error railway and over the lines of several connecting carriers, which it is not material to name. It was alleged that the injuries charged were caused by negligent delays and want of due care in handling the shipment. The defendant answered at the August term by a general demurrer and a general denial. The case, however, was continued until the next term of the county court on the application of the defendant, at which time, viz., on November 9, 1911, the defendant amended its answer, pleading as before and setting up several special pleas not necessary to notice. Thereafter the case was continued from term to term, once on the application of the plaintiff, one or more times on the application of the defendant, once to make new parties, but generally by agreement, until the third and last week of the February term, 1914, at which time the *901 case, together with a number of other like suits against the same defendant, was set down for trial by agreement of all parties; the court consenting. On Thursday of said week, to wit, on Thursday March 5, 1914, the case was called and tried in the absence of the defendant's counsel, under circumstances to be hereinafter stated, and the plaintiff was awarded a judgment for the full amount of damages claimed by him. Thereafter in due time the defendant made application for a new trial, which was overruled, and this writ of error has been prosecuted.
The material questions presented for our determination are whether defendant on the hearing of the motion for a new trial showed a sufficient excuse for the absence of its counsel, and, if so, whether the showing of probable merit in the defense to the plaintiff's action was sufficient.
As to the last question, independent of any amendment of the answer made or offered, we think the showing meets the requirements of the law. On the hearing of the motion two witnesses, whose depositions were on file at the time of the original trial, testified in explanation of delays and to care in transportation in such way as to contradict the plaintiff's testimony on the same points, thus tending in part, at least, to defeat plaintiff's recovery. It is not thought to be material that this testimony failed to cover the entire journey. It did comprehend a material part of it, and for the purpose of the motion must be accepted as true; for, if the absence of the defendant's counsel was excusable, it had the right under the general denial to meet the case as alleged in the plaintiff's petition as far as it could, and to have the court or jury, as the case might be, determine the weight and credibility of his testimony.
The foregoing conclusion brings us to the most serious question in the case and the one principally presented in the briefs before us; that is, did the defendant show a sufficient excuse for the absence of its counsel? This question has been answered by us in the affirmative in the companion case of S. B. Hovey M. L. Mertz, Receivers, v. Halsell-Arledge Cattle Co., No. 8133,
It is accordingly ordered that the judgment herein be reversed and the cause remanded for a new trial. *902