Kansas City, M. & O. Ry. Co. v. West

REPORTER SOUTHWESTERN tention son goods, plaintiff. Besides, cumstances tention among mitting testimony showing material false, and were made ments. ance of the evidence that purchase habit acter at was so recommended to was the reason reason it becomes our after the script tion for upon but transcript ruling, missing 145 S. by filing an within order to confer pellee, recommending affording ment court at a former term dismissed the made. After a demurrer script we set aside such question Revised article could be knew to be false at court with a was- in the which an See 131 S. W. 87. After [2] The court appeal upright, the time rehearing, record, goods, and that such reputation second, pleaded, made as We do not think the court erred in ad facts, thereby required from the W. others: and that Driskell acted since the habit of court an amended overrule the 1673, same was omitted in the time justice’s frequently safely extended, involved merits, with the record justice complied it was shown that he was rehearing, Statutes, purchase inducing that for justice’s held that while it was appeal appeal tending responsible Wells was an inducing that lie introduced Wells appeal his counsel of such still like required by and on appears, at the instance of alleged, “If an We have jurisdiction justice should contain justice’s gave which is recommended court was taken to the opportunity by you time original result, this court erred Driskell becoming many years prior becoming to sustain time, for which order, docket, first and second to this and consider the time Mm at the time to be prosecuted. duty trial, find man, and that him; were appellants Supreme Court, overruling which statement he that transcript, purchase, complied a bad irresponsible Voss with the in goods article 1673 from which following charge, accordingly with said article knew that and certified the statements unless he court; statements were papers supply upon the statements gine intoxicated, to whom credit known drunk for which rea appellee, plaintiff’s preparing the same was grant sell to sell Wells were county court, general provided by accompanied him reason this Wells, soon paymaster, preponder appellants certiorari, for which courts, transcript Wells the necessary the same. with this the tran No notifying omission, question, when he a motion the rule of morals is the rule of law in this showing but cir county latter, char done. judg tran issue tions were Voss from went able case filed con who true at mo dis 1. the CarbieRs ap- Cabbiebs 2. move could have Dig. § 218.*] were other to an unavoidable accident mand to unload or afford the and unload tunity the risk and them T. 42 S. in all ceedings 54 S. W. (Court 411; less defendant Voss knew that the &White W. Civ. ter v. statements though innocently false tiff merman, of deceit. falsity, instance, be ing did not know that able. statements made tiff and'so Stock — [Ed. Stock — No error give shown that he made them without know liable Where, though shipper That a May 8, whether Davis suffered did not avoid its while in 47 S. W. Cabaness v. diligence might W. cited. to unload them for Cole, As respects Note.—For other of Civil he the time Feed, Wateb, Feed, Water, 789; Beatty 43; Wright 4 Tex. thereby, and he should not CITY, we understand the 66 S. W. 893. cars notwithstanding engines v. false, caused We do not think this view ten 1912. On Motion say -shipper them, 42 S. W. having ing, food, water, 674r-696,927, 928, 933-949; expense time, transit and bound himself to load- damage. Reno, Driscoll, affirmed. by your unloaded. to a M. & O. RY. CO. v. WEST June Appeals trial 75, transportation, was erroneous he made the carrier refused on de- Holland, thereby. you Cas. Ct. were true or transporting respect and is made, et al. 146 S. been shown in the 369; Voss, 51 Am. Dec. place v. U. S. 29, 1912.) liability McCall be liable will find for the have known of their the exercise of reason See and Rest. verdict.” feeding representations food, water, Bulger, Cabotage Carriage See, also, M., Bigelow of Texas. Austin. and so were responsible 19 Tex. Civ. them, where the cattle the fact of cattle Mitchell Rest. law, refusal- for its v. Mortgage Civ. have used to in an it was liable untrue, Rehear- § 213.*] carrier’s en- not, where there- provided Voss would Sullivan, representa acting It is on 717; and cases an 1, pp. made the of Live. Carriers, Carriers,. of Live. watering App. 14, assumed, Frauds, v. because oppor- if his plain plain urged K. & were were Zim App. even rest, Car pro- due- Co., un he is- Key Rep’r cases see *For other and section NUMBER in Dec. No. Series Indexes- CITY, & BY. O. CO. M. WEST rulings excepted exceptions to, of (§ 139*) where a bill of Verdict— 3. Trial —Direction alleged improper to not remarks of counsel does of Power Court. giving justified'in show out is never were called evi- The trial court response oppos- argument peremptory charge, minds dence or to a ing counsel, particular presumed respecting issue under counsel differ a complied (67 xxiii), requir- investigation. rule 39 with S. W. ing argument counsel to confine themselves Trial, eases, Cent. [Ed. Note.—Por other see argument opposing the counsel. and the evidence Dig. Dig. 139.*] 338-341, 365; § Dec. §§ Appeal cases, [Ed. Note.—Por other see Appeal and Error 4. — Review- Error, Dig. 3729-3734; Dig. § Cent. Dec. §§ Harmless Error. 925.*] warranted would have Where evidence Appeal greater (§ 1032*) that return- for than 11. a verdict —Contents prejudiced jury, defendant ed was General. plaintiff’s improper exceptions counsel. A bill of remarks of must disclose sufficient alleged error of Appeal show that cases, see Note.—Por other [Ed. merely an abstract one. Dig. Error, Dig. 4135; 1060.*] § Dee. § Cent. cases, Appeal [Ed. Note.—Por other see (§ 244*) Carriage of Live Evidence 5. Error, 1032.*] Dig. 4047-4051; Dig. §§ § Cent. Dec. Stock —Actions. injuries delay shipper’s to live In action for a during 471*) — testimony stock, (§ in transit a 12. Evidence Conclusions the tele- over had a conversation Pacts. injuries phone shipper’s office one the carrier’s In a with some for live unloading stock, for the animals food relative a asked cattle- objected water, shipments to on the was man familiar as to the person the tele- not shown that the market if value of cattle at their destination prop- phone agent company, of the handled with reasonable care appeared erly objectionable calling admitted, where it for was not as con- office, company’s per subsequently called at the as clusion to what care. was reasonable person talked in he had found with whom cases, Evidence, [Ed. Note.—Por other see telephone charge, and then talked over Dig. 2149-2185; Dig. §§ Dee. Cent. 471.*] renewing company, request that he unloaded. Appeal Court; County from Brown A. M. Evidence, cases, other see [Ed. Note.—Por Brumfield, Judge. Dig. 916-936; § 244.*] Cent. §§ against Action Armitt West the Kansas Carriage —228*) (§ of Live 6. Carriers City, Railway Company & Mexico Orient Stock —Actions—Evidence. another. against From for injuries shipper’s In action for live appeals. unload for food and where it named, stock for failure to them defendant ap- transit, water peared that had the live defendant connecting receipted carrier and Garrett, Angelo, appel- stock from a H. S. of San prior delay, evidence Wilkinson, Brownwood, lant. T. connecting carrier usual custom of it appellees. delivering regard other cars to each in immaterial. Carriers, cases, brought by appel- RICE, other see [Ed. Note.—Por This suit J. 957-960; Dig. § 228.*] Dee. §§ against Gulf, & lee Colorado Sante Pé Appeal (§ 1057*) Railway Company Error 7. to recover — Review- Error. Harmless shipment damages by him a sustained testified without aWhere witness 143 head cattle over lines kept by him and this contents of books to testimony of contradicted, railway companies Talpa, the exclusion Coleman harmless. themselves was books county, claiming Mary. Neal, county, in Nolan cases, other see Note.—Por [Ed. said cattle were while 4194-4199, 4205; Dec. properly failure transit bed b!y rough cars, han- 256*) Instructions—Requests Trial upon demand, dling, refusal, —Necessity. and a request was that the court Where water, and feed said cattle while fully theory more of the defense state period detained some were given, its failure to do so was er- than ror. oppor- afford an hours tunity to so unload them for Trial, [Ed. Note.—Por purpose of which on account four Against died, Damages (§ balance said shipment Car —Actions injured, by of Live rier Stock. shipper’s action for live In a $517. It extent stock, it is not error to instruct the as a they pleadings unnecessary to state in case of law to award interest matter plaintiff. Railway Gulf, find for & Santa Pé Com- Colorado Damages, prevailed [Ed. Note.—Por pany, for the reason that Dig. § 67.*] from which trial has been taken. Rehearing. Motion for On specially general denial, Appellant, Error —Record— delayed said cattle of Grounds Review. denied that roughly Presentation St. art. and rule 59 Under Rev. by it, or same were handled courts, xxiv) (67 district longer period kept standing for a in the cars exception enough requiring to state bills of practical actually necessary explain than or facts ease to the evidence Big. Big. Rep'r Key Indexes Series & No. cases see same and section NUMBER in Bee. *For other REPORTER. SOUTHWESTERN of no loss, evidence showed that defendant was per remainder were turn ed of said cattle died at' restless, reaching the cattle were notwithstanding seem have been next remained departure sand casions, unloaded for lay), necessitating repairs, disabled the claimed, train was Angelo at which lant on its cattle were interest prosecuted. m. on the 19th of in trial, against appellant its porting train schedule of which had been pens, claiming any damage growing failure to any; assume and unload the said cattle on son spect, if fit for cified Railway Company tering, bedding, risk, said stock while in operation sponsible therefor; shipped by appellee, by bound to The first said cars destination, accordance regular head. a verdict for that night, and cannot be held liable therefor. morning, during which having for which reason he leaving .negligence contributing or time, resulting it did that facts, briefly transportation, about 8 them on gored, all demanded of compliance refusing to the fact thereon, on the pleaded elsewhere, San time it transport of its from San assignment rates, scheduled unload transfer track. risk and it but did not do it transport loaded the cars feed, rest, the terms run previous San under a any special train, with law. There loaded and it was shown o’clock ground trains; appellee, by less Gulf, which any and otherwise as an excuse through improperly Angelo injured and feed said a verdict and which soon said cattle within that not bound to were delivered to with instruct stated, improperly bedded, binding expense appellant’s July, arriving able to at his Angelo appellant standing special that the sum of defendant, said cattle day insists that it written contract with Colorado which this Talpa did not that it received its leave at 12:10 on its was in no on two appellee agreed which each reason said (which, water. The cars own the show: so, owing, Appellant’s engine duty himself to time or Mary bedded until 8:45 the stand, duly published about 5:30 company, cracks before estopped on cars justify extent of for said de- other. Four extra shipment feeding, expense cattle were for the cars, out of jvas as undisputed delayed on several oc- it was caring $175, in this re- plaintiff’s notwithstanding the cattle of which That transport Santa had been Neal, cattle, in which tained a request- evening, way became at San arrival guilty to re- train; yards, track, appel- trans- from jury ding, load first said And rea- spe- wa- un- $3 re- Fé at p. is to train standing been cident to ly son is occasioned R. the ford same for instant provided expense same, still, and bound fused to had been properly refused, plaintiff’s Notwithstanding the fore cattle were en cars or bedding rier the cattle per at his own ecution tempt same, risk and manner; and'undertakes reasonable not be where cident which anticipated, cial cattle over its line they by prevented train, economically dered to it for charges in lier than narily ed ficient to of gence, first, ^[1] held its failing any alleged pay according carriel’, upon demand, makes no have had regular published contract liable for And were loaded should believe that occasioned and otherwise We think going forward, that where business, he cannot hold such Carriers, guilty in received case, responsible improper bedding. of said fixed therefor connecting the fact that the unload sufficient number of expense Lewis, feed, contract the absence of a and, its while at contract to move feeding expense care, himself to load and' unload the operating or avoided propositions shows thereby, first with could not have been he had route over request time or second, water, it to recover in shipment, injuries, the fact that the defective condition of said by negligent going contract, 23 W. such because it will true, engine load and is regular therefor. carrier it caring handled handle published railway company peremptory after the some executed and while the feeding, watering, the same cars which shipment engine. cattle avoid the refusal on contract the carrier assumed all risk and by railway company in expenses forward subsequent where such shipper watering risk, connecting point schedule originating law so to do the thereunder its appellant delay; delay might be for said scheduled enters unloading unavoidable unload the same special contract, after the think, take the any, the exercise connecting where wholly line, by guilty unload, I. & G. N. R. regular the event the trains, cattle Besides schedule, of cattle ear- does not at- according effect aof assumes 2 Hutchin traffic ordi- said cattle insufficient into a caused to the ex- appellant shipment, shipment transport notwith foreseen, had re demand train is proper are ten- part ignored carrier, injury an ac- freight reason freight insists, special operat- course third, have main- negli- this, him. bed- car- spe- suf- ac af be- re- CITY, M. & RY. CO.v. WEST evidence got ped cattle, forms talked over the fice, manding that him an their market value tion. lowing question: up by telephone the officeof both the Santa ham, plaining of this matter. number on the of the man, Dé signments was requesting where he found the Angelo plaintiff testified miles, ruled. justified wear and tear incident to that er 12 o’clock that returned a have been lieve that thereof, ment, plaintiff for ment. remarks justified fer track or accident able der the reasonable care for them no switch did not show terminus, thereby. accident this only out at the time one or more of shown cattle The ^{[4] [5] [3]} party which reason no satisfaction. which reasons who at that refused. they diligence. 149 S.W.—14 and was shown to 51 While it Apart Soon He yet, objections See company particular night Tex. Civ. called in minutes late. San in complained to its evidence, soon after the answering would was asked It seems basis yet in of error. verdict for recovered, we minds the that G., and to giving peremptory charge engine addressing after the cattle his Orient have been unloaded, notwithstanding view when overrule they clerk admission engine prejudice This was that engine, been there. request gave was an his phone appears & S. F. party might night, whereupon “Considering of their App. 368, the office of the this, issue there. of the have been unload his cattle or evidence party improper Railway wear cattle be to do of in passenger arrived at We It authorized to greater the office assignments moved by shipped overrule third phone overruled, differ notwithstanding under his counsel the fol- that he Ry. phone appeared left of this trial court with whom he fact that the unable think charge During $175, arrival, point so, whom he shown 113 W. 774. assignment Angelo frequently arrived at v.Co. Companies, Certainly for counsel Talpa him the from the trans- inclined to be with reference was the unloaded, use of verdict second tear, familiar with whch the condition out investigation, engines conversation S. to make the whereas, shown this these trip ascertained objected of destina- testimony, fourth occasioned by appellant, company, are over until Cunning he called still this bind request talked, reason- assign assign Angelo cattle- phone phone where agent never com that give San aft but un de as of what their usual custom was cluding laid therefore overrule the fifth ments same in cause between appears what such market value ments are not when they had been handled with such an answer would not or cattleman, appellant; ought ue would question assuming condition known their market value tle at erred the tion and who knew the trip.) He Llano to asked, which to his with appeared 101 This time?” To which ed the counsel for swer the jection sidered, It place, position market in question condition, predicating six dollars a head “What [6] The seventh the usual or delivering did not call that section?” was witness said cattle to the Santa ordinary way, ordinary way, opinion, case do down fact, the wear are handled ordinary We do not question. they shipped, Mary Neal, to be allowed to it evening upon It seems could was the ex so that merely requested for these cattle appellant appears think the we based on mixed on the Fairfax, answering, of H. & T. C. excluding error, presenting substantially question propounded, was that transport ordinary way, who had nor do we think seek to raise Douglas. should have appellant, concern this of law and made; but, the cattle when appellant stating was a cars to each the case 108 been, parte expense a market value ordinary for his and who was overruled. The care and and tear regarded think that the to us and what said market val Objection when that S. W. became we will frequently shipped witness his reasonable time a train condition He had anyhow.” opinion upon they last taking give they answered: way that an fact, even they gotten experience, what, train questions Ry. diligence. incident to witness did not thirteenth and that connecting carrier, other. immaterial as to thereupon asked, above cited. We infringe had been handled and sixth his say, it was was made to state were handled in transit. knew the they Mary Fé at 9 o’clock are sold been allowed bills Co. shown to have relied of cattle into considera book for these of the cattle opinion assumed to which it be so reached be, provided In the first was erred was there witness was was experienced destination, transported whether or v. Besides, left taken, offered care, arising the court reference Neal improper. receipted on a “Twenty- to allow Roberts, kept by witness, Here done assign at that proper. within Talpa. as to exact (The care good mix rule con sup cat law ex be an ob by in in in SOUTHWESTERN REPORTER in the charge of alleged presenting measure of following: sion of certain hearing, plaintiff were not overrule this case, 375, 101 S. W. 488. eleventh trial firmed. find as matter tive the idea that 90 Tex. in a suit for reason tion interest has braced in The terest thereon from the time of the plaintiff, it was ings original opinion ment that, Co. v. ed titled for tenable. the contradicting sion, a S. F. portion to state the the court’s quested by it, S. F. 127, berti, testify, as full as it desired fuller We theory S. A. While we are inclined to believe that our call Finding [10] That [9] The [8] It is as book, approved sustaining given, think the authorized error, court in Ry. still, if therefor, Ry. error. remaining proper fuller Scharbauer, misconduct affirmance without of its 584-588, they On they assignments those Co. v. in a certain interest and there petition Co. v. by appellant the court with reference in view of the strenuous conten- the case to if urged for which reason the criticism the its the amount so found from damages, assignment. are not Motion should have issues, error damages, statement any, for so its a similar should find which was not done. Our should of charge together effect already considered, present proper statement Batte, objection, find; assignments the charge 40 W. Graves, law testimony claimed was therefore harmless. Smith, any G. H. & H. Supreme second, fifth, sixth, abusive toward sufficiently remarks 52 S. for again the court, counsel for allow we desire to add the defense. for which reason we wherein it undertook amount, matter mere error to direct measure of time. should have been charge, holding Rehearing. instructed the event is in all Watkins v. proceedings 24 Tex. Civ. than that error, relating a verdict for its motion for re- the cattle at discussed. 11; jury, as well him Court, evidence offered that 103 S. W. 699. the contents respect 6 This is Ry. Co., court damages, 589; G., of full to asking T. & P. per If counsel for 109 S. W. 423. the 6 stating appellee the admis- was committed things for Civ. been per given recovery cent, damages G., & G., nor Junker, respect. sponse injury. plead is not omis nega- judg C. H. cent, C. & July em- Ry. the the de- en af- Al re in to miliar with such T. not invite erts, handled that he was an witness West care stated tion the reason elicit pertinent enable determine the to show raised say, in addition is of plain xxiv). particular particulars, merely stating court which do not of the below ception, but all exceptions merely in of the court have been called on counsel. The in the stated It must be sence of a counsel for objections the wick, 44 Tex. taken the rules selves opposing counsel. enough nunciatory have counsel For 3. While [12] With reference to Thompson, not the the the ruling or phase eliminated, or was propounded 101 Tex. the been should record, The in the 2. with such circumstances or merely we evidence as response While our ease to of the evidence or the any expression handling that we negativing cases counsel. effect is opinion to the argument require the fifth any ruling. To be form of were not' think the case is presented court to bill must disclose sufficient the other side. justified by something presumed, showing excepted original opinion, the exception, not questions Mary with reference to reasonable expression action of the an abstract of H. & C. appellant; taken to U. Davis, make the shipments, set forth in of words shall forth either exception supposed is.fatally as to the market know, the case of that counsel confine said statute states the Rev. Stat. art. 1361. To sufficient, it C. 577. Rule 39 108 S. W. assignment, of counsel the idea finally asked, facts what has did Neal, argument ordinarily provoked did to. Rule 59 intelligible must the T. shipment; decided still the be way, the it is said: “When and circumstances this. prescribes formal bill of error opinion objectionable when and therefore did defective nor is one. See Litten necessary (67 effect care, him as to what understand and Ry. It the Griffin distinguishable remarks court contrary, cattleman, ruling for defendant. the remarks already we necessary to form a facts argument exception the evidence is true of The bill be remarks Co. v. Rob must state bill.” for which it did not the appearing and &H. complain- sought and with the court from the it shown or (67 W. desire value question opposing so much shall v. Chad required in these proved ruling in re xxiii). made, S. them ques part may for fa ex ex ab no be be' to I-IVELT & TRUST CO. v. STATE BANK GUARANTY Banking 148*) (§ by appellant the 3. Banks ed of with reference —Checks— Rights Depositor oe —Indorsement. immediately damages, still, fol- measure of lowing depositor to a are returned When checks expressions complained of, the charged bank, with notice he you forged indorsements, and, “If has ascer- court said be- this connection: when signature genuineness of his tained the correctness of lieve that of said cattle died sum, as- he has they sustained, you will award to is genuine;_ sume that indorsement signa- being presumed reasonable value know drawer being required payee, but bank ture of Neal, Mary Tex., town of at the time peril. to determine there, condition arrival and in the their Banks and [Ed. Note.—For ' arrived, but for in which would 438-452; Banking, you negligence, any; if 148.*] defendant’s Banking believe from the evidence Banks —Checks— Payment Forged Instrument. injured, you award to said plaintiff payee’s check, paid in- Where a bank value at difference being forged, deducted dorsement -Mary town Neal of eattle so drawer, amount from account amount. there,' the full liable drawer time of arrival at the cases, see Banks and [Ed. Note.—For other they arrived, in which and their condition Banking, place in the condition value said time there, have arrived but (§.758*) —Briefs—As negligence, any.” In the defendant’s signments Error. application law view of this direct does not indi- brief Where an special charge, requested cate the nature of a the is facts, preceding we think the statement complains, refusal of which he jury. could not have misled the presented review. After mature consideration of matters rehearing, presented motion § taken, Banking regard it as which reason (§ 149*) Payment 6. Banks Forged things Check. is in all overruled. bank, containing A which indorses a check overruled. Motion prior payee, forged indorsement a fictitious bank, is liable to has the drawee honored check, knowingly the the making unless the drawer drew payee, check in favor of thus fictitious payable bearer, its indorse- indorsing guar- ment the bank vouched BANK TRUST CO. STATE & GUARANTY payee’s anteed the indorsement. † v. LIVELY. et al. cases, [Ed. Note.—For other see Banks and Banking, Dig. Dig. 453, Cent. §§ § Dec. Appeals (Court San Anto Civil of Texas. Rehearing De- nio. June Appeal 28, 1912.) nied June -Review- Harmless Error. Wrongful and Notes 1. Bills In an action drawer a check Payment against of Check —Protest. the bank on which it was drawn depositor impleaded check in fa- in a bank A drew a bank which awas second gave principal, indorser, to one of the check pleadings parties vor of of all ad- represented himself forgery who mitted indorsement was a person, payee, payee fictitious person, fact a who was a fictitious the refus- upon bank, paid indorsement charges placing second check was al of the burden on forged name of the agent’s prove error; those facts was not payee, bank indorsed and the second fictitious immaterial. check, drawn bank on which was art. paid Rev. SeU, St. it. Dig. § 106-7.*] bill of ex- providing change liability the holder negotiable fix the instrument or Court, from District Dallas Coun- indorser drawer ty; Roberts, Judge. J. C. protest exchange insti- notice of tuting exchange acceptor against such 'bill Lively against Action suit H. Y. the Ameri- district term the to which suit before Exchange Dallas, can National Bank of brought can be impleaded Guaranty State Bank accrue, does shall Company & Trust apply. another. There against Bills other 680-705; Note.—For the first- TEd. Dee. Notes, named defendant over in against favor of such defendant Banking the im- Banks —Checks— Payee. pleaded defendants, and the latter Fictitious knowingly of a check drawer Where payee, it payable is con- fictitious ato makes sidered person bearer; but, a real payable Leake, Henry Coke, & Robertson and Mill- payee, the check name intended appellants. Dallas, Coke, er J. & payment person, indorsed must by Goggans Eldridge, D. A. both of Dal- L. las, upon unauthor- of some indorsement bank binding drawer and person appellee. ized peril the bank. cases, see Banks and [Ed. Note.—For by ap- FLY, instituted This is suit J. Banking, Exchange against Na- American pellee 13S.*] Rep’r Dig. Key Series Indexes No. section NUMBER cases see *For by Supreme granted Court. error † Writ of

Case Details

Case Name: Kansas City, M. & O. Ry. Co. v. West

Court Name: Court of Appeals of Texas

Date Published: May 8, 1912

Citation: 149 S.W. 206

Court Abbreviation: Tex. App.