265 S.W. 758 | Tex. App. | 1924
F. J. and F. C. Shell sued the appellant company to recover damages to a shipment of a car of threshed maize. They allege that they shipped said maize from Ralls, Tex., to Santa Anna, Tex., November 6, 1920, and that the grain was in a damaged condition on arrival at Santa Anna; that said shipment was consigned to themselves at Santa Anna, Tex., but was to have been delivered to S. H. Collier. That at the time the grain was loaded and delivered to appellant, it was thoroughly dry, bright No. 2 maize, in good shipping condition; that when it arrived at said destination, approximately one-half of it was wet, heated, and partially rotten, on account of which it was rejected by Collier. That thereafter plaintiffs made a diligent effort to resell the grain to other parties at destination but were unable to do so, but were compelled to reship the car to Fort Worth Elevator Company, at Fort Worth, for the purpose of having it cooled, cleaned, and dried in order to put it in a salable condition and to diminish and reduce the resultant damage thereto. They allege that they afterwards sold it to the Collins Grain Company at Fort Worth, Tex.; that had the grain arrived at its destination in proper condition, it would have been worth upon the market the sum of $1,213.94, and that the reasonable value of the grain in the condition in which it arrived was nothing, except that it had been cooled, cleaned, and dried. That the plaintiffs paid $341.71 freight for the transportation of the car to Santa Anna and to Fort Worth; that the expenses of cooling the grain at Fort Worth, including insurance, and storage, and selling it was $94.59; that plaintiff F C. Shell incurred an expense of $50 in going to Santa Anna for the purpose of taking care of the car; that the grain sold for $820.43, and the plaintiff sued for the difference in the value of the grain in its condition when loaded and when delivered at destination, and for said expense items including freight, or a total amount of $879.81, with interest.
The appellant company answered by general and special demurrers and general denial, and specially allege that the grain was damaged on account of the fact that it was green and damp when loaded into the car, and that plaintiffs were guilty of negligence in so loading the grain in such condition. The issues were submitted to the jury, who found that the maize was dry at the time it was delivered to the appellant for shipment; (2) that it was damaged when it reached Santa Anna; (3) that such damage was not the result of any inherent defect of the grain itself; (4) that there was a leak in the roof of the car in which the grain was loaded; (5) that the value of the grain upon its arrival at Santa Anna in its damaged condition was $933.80; (6) that the plaintiffs were not guilty of contributory negligence because of the condition in which the grain was shipped. Judgment was rendered for plaintiffs for $659.80, and interest.
The first proposition urged is that the court erred in overruling the appellant's exception to that part of the amended petition "which alleges that `the freight paid by plaintiffs for transportation of said car of grain to Santa Anna, Tex., and thence to Fort, Worth, Tex., was the sum of $341.71; that the expenses of cleaning said grain at Fort Worth, Tex., including insurance and storage, and of selling said grain thereafter, including the broker's commission for said sale, amounted to $94.59, and that the expenses of plaintiff F. C. Shell to Santa Anna, Tex., for the purpose of taking care of said grain and reducing and minimizing the damage thereto was the sum of $50,' because the same does not allege or set up damages recoverable in this case, but sets up special damages which are not recoverable under the pleadings in this case." This is not a special exception, since it does not go to the manner and form of the plaintiffs' allegations. It does not particularize the defect urged under the proposition, i. e., that it is not alleged that such expenditures and items of damage were reasonable and necessary; *760
it is therefore only a general demurrer to that paragraph of the pleading. District court rule No. 18; Weatherford M. W. N.W. Railway v. Granger,
It is true that the particular part of the pleading pointed out in the exception does not allege that the expenditures were reasonable and necessary, but the petition elsewhere alleges that:
"After the rejection of the said grain, the plaintiffs made diligent effort to resell the grain to other parties at its destination, but were unable to do so, and were compelled to reship the car to the Fort Worth Elevator Company, at Fort Worth, for the purpose of having it cooled, cleaned, and dried in order to put it in a salable condition, and to diminish and reduce the resulting damages thereto."
It has been held that this is tantamount to an allegation that such expenditures were reasonable and necessary. Texas Electric Railway v. Jones (Tex.Civ.App.)
It appears from the record that the proper measure of damages has not been awarded by the court, and that the judgment denied the appellant the right to collect freight. Plaintiffs' action is not based upon a shipping contract, but they seek to recover upon the common-law liability of the carrier. The proper measure of their damages in a case of this character is stated in St. Louis Southwestern Railway v. Foster (Tex.Civ.App.)
In so far as the exception considered as a general demurrer goes to the measure of the items of damages as alleged (aside from the issue of the necessity and reasonableness of the incidental damages claimed) is concerned, it should have been sustained to the item of freight charges from Ralls to Santa Anna. Plaintiffs are not permitted to recover such charges. The rule is, if the freight was paid to Santa Anna it could not be recovered, and if not paid in advance, then such charges must be deducted from the amount of damages awarded. G., H. S. A. Railway v. Ball,
It is generally the duty of one who has suffered injury by reason of the wrongful act of another, to protect himself from the injurious consequences if he can do so by ordinary effort and care and at a moderate expense. Cooper v. City of Dallas,
For the errors pointed out the judgment is reversed and the cause is remanded. *761
