87 S.W. 168 | Tex. App. | 1905
Appellee instituted this suit in the County Court of Deaf Smith County on the 3d day of February, 1904, against the Pecos Northern Texas Railway Company, the Fort Worth Denver City Railway Company, the Missouri, Kansas Texas Railway Company of Texas and the International Great Northern Railway Company, for the recovery of damages to twenty head of horses shipped by him from Round Rock, Texas, to Hereford, Texas. Appellee alleged negligence in the failure to furnish a proper car, and in a failure to exercise the proper care in the transportation, whereby the said horses were injured in the particulars described in his petition, and damaged in a total sum of $435. Among the items of damage alleged are the following: "$75 for the time that they were unable to work on account of their injury; $5 for time lost in doctoring said horses and mules; $15 for unloading and reloading said horses and mules at Fort Worth; $10 for medicine used, and time and trouble of moving crippled horses from Hereford, Texas, to Running Water, Texas." The trial resulted *238 in a verdict and judgment in favor of all of the railway companies named save appellant, against which appellee recovered the sum of $175.
As alleged, the County Court of Deaf Smith County had jurisdiction over appellant. All of the railway companies named were connecting carriers, and participated in the transportation involved. It was alleged that the Pecos Northern Texas Railway Company had an agent and operated part of its line in the county of the suit. There was no plea of privilege other than by demurrer, and we think the petition brought the case within the letter and spirit of the Act of 1899. (See General Laws of 1899, page 214; also Atchison, T. S. F. Ry. Co. v. Williams, 12 Texas Ct. Rep., 570.) In such case it was not necessary, in order to authorize the joinder of appellant, that the petition should have alleged a partnership, a joint contract, or the precise amount of damage resulting from the negligence of each separate carrier. The petition did comply with the act stated in alleging the transportation over each of the lines named, and that they were agents of and for each other in such transportation. We therefore think the exceptions to the petition properly overruled.
Under the eighth, ninth and tenth assignments, appellant seeks to avail itself of a special provision in its contract of shipment to the effect that, as a condition precedent to appellee's right to recover, he should give notice in writing of his claim of damages to the officers of the company named before the horses were removed from the car in which they were transported. It appears that notice (of which no complaint is made) was, in fact, given to the agent of the terminal railway company, but no claim for damages was presented to any officer of the appellant company. The provision of the contract mentioned was a limitation on the liability of the carrier at common law, and hence unenforceable. (See Rev. Stats., art. 320; Railway Co. v. Harris,
We find no satisfactory answer, however, to the third, fourth and fifth assignments, all involving substantially the same question, viz., the proper measure of damage. Without proof that there was no market value at Hereford, Texas, the final destination of the shipment, and without knowledge on appellee's part of the market value of such horses at Hereford, appellee was permitted to testify that, when the horses were delivered to him at Hereford, he proceeded to his home in Running Water, Hale County, some fifty miles distant; that, while he did not know of any horses or mules selling at Hereford, and made no inquiries as to prices, he knew of horses and mules selling at Running Water shortly after the time he reached there, and he estimated the damages done to his horses and mules "at their difference in value as fixed by what they were selling at down there in Hale County shortly after I arrived there." Appellee then proceeded to give his estimate of the difference in the value of the horses and mules injured in the condition they were at the time of delivery at Hereford and in the condition they would have been in had the transportation been properly made, such difference aggregating $330. He was also permitted to testify, over the objection of appellant, that, by reason of the injury to his horses, he *239 was unable for some time to use them for the purpose intended, to wit, planting a crop, "and by reason of this loss of the use of the said horses and mules, at the time when I needed them, I estimate that I was damaged, at least, as much as $75."
We think the court committed error in the particulars named. It is not alleged, nor is it shown, that, at the time of the shipment, appellant or any of the carriers was notified of the fact that appellee intended to proceed from Hereford to Running Water, and intended to use his horses and mules for the purpose stated. It seems clear, therefore, that the damage done because of appellee's failure to put in "as much crop" as he "otherwise would have done," and the value of the "extra time and trouble in moving" the crippled horses and mules from Hereford to Running Water, was not recoverable. (Railway Co. v. Belcher,
It is also well settled that, in order for a witness to testify as to market values of livestock, he must be acquainted with the market values at the market concerning which he is called upon to testify. The difference between the market value of appellee's horses and mules in the condition in which they would have arrived at Hereford but for the negligence shown, and their market value at that place in the condition which, by reason of said negligence, they did arrive, constituted, in the main, the proper rule for appellee's damages. (Railway Co. v. Stanley,
Complaint is made of the charge of the court, but it involves matters of mere omission, and we need not notice it. For the errors noted the judgment is reversed and cause remanded for a new trial.
Reversed and remanded.
