72 Tex. 127 | Tex. | 1888
This suit was brought by appellees, plaintiffs below, against appellant, defendant below, for injuries to and loss of two car loads of horses shipped by plaintiff on defendant’s railroad September 21, 1885, from San Antonio, Texas, to Memphis, Tennessee. The cause was tried by the judge, both on the law and the facts, and judgment rendered for plaintiff for $1800. Defendant appealed.
The error assigned by appellant upon the ruling of the court in refusing defendant’s application for a continuance need not be considered as the case will be reversed on other grounds and as there is no new feature of the law of continuances presented in the application. The action of the court in overruling defendant’s general demurrer to the petition is assigned as error. No error is pointed out in the assignment, and upon inspection of the petition we fail to discover any that would require a revision of the court’s ruling.
The court permitted Fagan to testify, over defendant’s objection, that ■ the conductor of the train on which the horses were shipped informed him at what time the train was due at Palestine from San Antonio. Defendant duly excepted, and assigns the ruling as error because the statement of the conductor was not the best evidence.
It is sufficient for us simply to say that there was no error in the ruling.
It is claimed by appellant that the court erred in permitting witness Fagan to state what the custom of the railroad was in delivering stock at their destination.
It seems the object of the testimony was to show that Jones & Co. held the horses for the railroad company, and that plaintiffs were thus relieved of the care of them while they were in Memphis. The testimony objected
to was as follows: Fagan testified that “it was customary for railroad
Appellant says the court erred in “permitting Fagan to give his opinion as to what the stock would have been worth at Memphis if they had not been injured in transportation.” Knowledge of the market value of an article is hardly an opinion; it is a fact known from information. If a witness is not fully qualified to state the fact a cross-examination will show it. Such matters go to the weight of the evidence and the credibility of the witness and not to the competency of his testimony. The question here raised as to the correct measure of damages will be noticed hereafter.
The seventh and ninth assignments of errors are to the same effect and are based on the refusal of the court to allow defendant to prove by the witness Michelson that the universal custom of all railroads, and particularly that of defendant, had been at all times and still was not to ship any live stock or receive the same for shipment of any kind whatever:
1. Unless the owner or agent would accompany the stock on the same train, and at his (the shipper’s) expense and risk feed and water such stock at the points where it is unloaded for'that purpose.
*131 2. Unless the shipper would hold the railway harmless against ordinary delays in taking up freight.
3. Unless the shipper expressly agrees that as a condition precedent to his right to any damages for any loss or injury to his stock during transportation or previous to loading for shipment such shipper will give notice, verified by affidavit, of his claim therefor to some general officer of the railroad company or the nearest station agent, before the stock is removed from the point of shipment or destination and before the stock is mingled with other stock.
4. Unless the shipper agrees that in case of total loss of stock not more than the actual cash value of the same at the place of shipment shall be the measure of damages.
5. Without furnishing the shipper a free pass over the line of shipment, along with the same train, to the place of destination of the stock.
Defendant offered to show that such customs were general and known to plaintiffs, as well as to all shippers of live stock over railroads and specially on defendant’s road. The objection made to the evidence was that it would limit the liability of the carrier. It was not objected that these stipulations were set up in the answer as existing in contract between the parties, nor that the proof showed, as it did, that there was a contract containing all the agreements of the parties.
Usages of trade, Mr. Greenleaf says, should be sparingly adopted by the courts as rules of law. “Their true office is to interpret the otherwise intermediate intentions of parties, and to understand the nature and extent of their contracts arising not from express stipulation but from mere implications and presumptions and acts of doubtful and equivocal character; and to fix and explain the meaning of words and expressions of doubtful or various senses.” 2 Greenl. Ev., sec. 251. Usages of trade are admissible, however, to show the relative duties and rights of parties as incidents of contracts and transactions; but the usage sought to be invoked must have all the elements of a usage as to certainty, uniformity, notoriety, and reasonableness, and it must not be contrary to law. A usage can not be a good usage if it is contrary to law or public policy. In the case before us, for example, the defendant offered to show a custom of railroads not to receive for transportation any live stock unless under certain conditions modifying their common law liability. Such a custom would be bad because railroads can not legally refuse to ship live stock. A common carrier has no right to demand of a shipper a waiver of his rights as a condition precedent to receiving freight. If such a custom should be ever so common and uniform it could not be sustained because it, the custom, would be against the law.
Let us look at the particulars of the custom proposed in this case. It required the owner to go along on the same train with his stock, to feed and water them at his own risk and expense. The law imposes this duty on the
We may say the same of the stipulation in the proposed custom requiring the shipper to agree as a condition to the right to ship his stock on a railroad that in case of total loss of stock the measure of damages should not be more than the cash value of the same at the place of shipment. Such a custom would be illegal and the carrier could not require that the shipper should make such a special contract. See R. R. v. Trawick, 68 Texas, 314, in addition to other authorities cited. -
Appellant claims that the court erred in sustaining plaintiff’s objection to testimony of Pagan, sought to be elicited by defendant while he was being cross-examined, that his agreement was to feed and water the stock and attend them at his own expense.
It is sufficient to say in answer to this assignment that the evidence of Pagan showed that the contract of shipment was in writing; the objection to the evidence was that it was not the best evidence. The objection was well taken and should have been sustained.
But one other assignment of error need be noticed, as it will dispose of
The court found and the evidence showed that many of the mares shipped were with foal and that they lost their foal on the way, and when they arrived at Memphis they were practically worthless. The most of the cargo were mares.
The railway company was bound to deliver them in a reasonable time and it was bound to exercise due care of the animals while in its possession and while in course of transportation. The correct measure of damages for total loss, there being what is called inherent defect in such freight, and especially so in mares with foal, would be the price, less the freight charges, they would have brought in the market at the place of destination in the condition they would have been in had the company exercised due and necessary care of the same while in its possession, and this price, less freight charges, at the time they should have arrived if shipped and delivered in a reasonable time. In case of partial loss the measure of damages would be the difference in such price, less freights above stated, and the value of the animals at the same place at the time of arrival. Railway Co. v. Harris, supra. The company would not be liable for damages resulting from inherent vices and defects in the animals; so if the defendant company performed all its obligations and duties as a public carrier in transporting the animals, and loss or depreciation of price resulted from natural defects, no damages could be had. The principle is, the company would be liable for no injury arising from such defects and the defects must be considered in estimating damages if any arise. The judgment of the court below should be reversed and remanded for a new trial.
Reversed and remanded.
Adopted November 27, 1888.