*1 CO, WHITE v. HOUSE PAYNE (231S.W.) might judicial verdict, but, as that court will take notice of fact the upon the fendants company prior revised case plaintiff latter was the the trial deprive the had done evidence, he upon and the former Director General in the court longer gov- been adverse entitled to by injustice might'suffer an below, he and ernment at time. not bound he was taking direction a ease <¡=>89 juris- 3. Court has be reversed anticipate, Com.merce —District will proceed- and diction suit to recover ex- for further remanded the cause and freight charges cess made in violation In- ings.” terstate Commerce Commission rule. had case, court if the in this So jurisdiction The district court of a suit has freight charges verdict adopted finally the construction to recover excessive and de- appellees would by appellants, upon insisted murrage paid protest, though the initial presenting ain opportunity of an had is with trial, the facts which all new rates; motion Commission to fix establish and rules and inequitable court charges being make recover demanded upon construction in violation of the Interstate Com- a render fixing demurrage judgment here would merce Commission’s rule rendition a charges freight rates, opportunity. to assail the deprive of this them rule as unreasonable. 293, 3 Moore, v. of Moore controversy a 'Testimony where con- 4. to what <§=>489 Evidence — verdict, said: construction where stituted admissible wit- ness testified he knew the value. interpret- correctly may court that the “It against damages may for_ jury, In an action a railroad language or it ed shortage entitled between agreed that defendant agree destination of certain coal land, failed cars of de- half to one involving consignee, witness, title to of a livered issues of such true construction As coal was the market value half. that at the amount other nor this verdict, plus carriage giving lower neither and tax a mines speculate. must The verdict permitted place on each is find at each by pleadings in made issues all the that he was admissible where he testified mistake. language not admit of value, does knew continuation, end, .should <§=>48(3) of action for ex- 5. Action controversy.” —Causes ' cessive judgment, shortage joined. damages properly former coal to our adhere rehearing will be overruled. a of action railroad ex- motion Causes charges, demurrage charges cessive damages exacted, shortage wrongfully properly delivered, joined, since of coal grew and were out of contracts all contractu, delicto, ex not ex the HOUSE LUMBER CO. PAYNE parties. same (No. 1750.) <§=>255(7) Testimony from rec- 6. Witnesses — though admissible, made witness was Appeals ords Texas. (Court Amarillo. of Civil Rehearing records themselves exhibits and witness May 11, Denied 1921. independent 1921.) recollection facts. had June company against In an action railroad <§=>5'/ n Key-No. plain- New, 6A of coal delivered to 1. Railroads agent under tiff, of federal busi- Series-Substitution delivery, Transportation Act. ness at arrival, agent appointed their two The substitution of federal though missible, Transportation witness from his rec- Act 1920 as defendant attached to his ords which were the Director General and a rail- a suit company, though an exhibit two made without the notice road keep ordinarily required practice, were to correct records the state is suf- transactions, ap- of such the cars were unloaded ficient where such notice waived un- direction, whoBigned pearance plead- der his made he and and ings the entries at the time of for the Director General and making objection trial, sheets from tak- identified the ing a.tthe tes- he exceptions. office, bills of records from tified al- though independent had recollection of < n =44—Judicial Evidence notice Direc- weights. tor General Railroads succeeded Agent orig- <§=>255(7) Testimony 7. Witnesses of President. — admissible, brought against inal witness Where suit railroad though book in which same company Railroads, the Director General of offered in evidence. thereafter, case, before trial of the Agent witness, dismissed succeeded of the the Where in an action to recover President under Act from railroad topic Key-Numbered Digests other eases see same in all and KEY-NUMBER <&=For Indexes 231 S.W.-27 *2 (Tes. SOUTHWESTERN jection expense weight plaintiff, as to to the introduction bill and to testified of delivered coal, delivered, showing thexweight from certain of a car of of certain cars allowing the therein time, court fact that in amount him at the made sheets, kept not stated. were the book in which inad- render them not in evidence did offered support <§=>134 13.Carriers held to —Evidence missible; in hook relevant judgment though shortage delivered, for coal being admissible. to the issue probable there was chance of or loss — <§=>255(7) Testimony to ascertaining weight 8. Witnesses error in thereof. and entered of coal of cars Evidence to held sufficient unloading admis- of at time books witness shortage amount of a for in coal de- superior toas sible, witness’ where consignee livered to ped due to its been of entries. correctess open money loading cars to save from a railroad recover of an action to In though unloading, of probable chance plain- shortage company tiff, to coal delivered ascertaining loss or error in of a witness thereof. admissible, part delivered of of two cars weights him in the entered were Appeal Court, Hemphill from District unloading, which books at County; Ewing, Judge. W. R. general tes- duty, and of his Action' the White House Dumber Com- made. entries to the correctness tified as pany against Hines, Walker D. Director <§=3376(I) 'Testimony of witness- Evidence 9. — Railroads, General of & Panhandle coal admissible of cars toas es along Railway Company, Santa Fé wherein John showing tickets scale with Barton was substituted as defendant. pounds. weights cars Judgment plaintiff, and defendant John to a railroad action In an Payne appeals. Affirmed. plain- to coal delivered recover tiff, Terry, Mills, Galveston, out Cavin & of witnesses shipment, points Hoover, Willis, initial Canadian, coal at Hoover & cars of rec- appellant. line their in the empty and when cars ord of Jennings, Canadian, ap- Sanders & original scale loafred pellee. corresponded on entries with the tickets, which admissible, scale were the books, their tickets HUFF, compa- J. The C. lumber themselves, ny, corporation, originally petition filed its stamped net, gross, were tare and 2,1919, against in the district December figures done; on the tickets weighing being Hines, Walker D. Director General of pounds and not tons. mean construed Administration, United States Railroad <§=>100(1) Though cars Carriers 10. — Railway Company. Panhandle & Santa Fé though carrier, washouts, owing to bunched alleged shortage for weights sued demurrage for fault, entitled without point shipment shipper such case. allowed free weights at destination of a number of cars of through no fault Though bunched cars shipped Colorado to its owing washouts over carrier Deer, Pampa, Miami, offices at White control, collect demur- no it had Tex.; Canadian, shortage alleged the total grant the rules rage shipper free time tons, up be 21 made of several thousand conditions, making it im- under pounds shortage named, each of the cars get possible cars alleged and of stipulate demurrage also rules and which per ton, $10 total $210. All of refunded. shall shipments year during said 1918. occurred <§=3926(1) Appeal —Where 11. right itAlso claimed ato sustaining after issue admitted exception, demurrage charges paid refund of various amended, pre- it is protest during year under 1918 on a changed mind. sumed shipments number of different of coal and demurrage Where, to recover in an destination, -Canadian, alleg- Tex., lumber at protest, court admitted ing shipment of said were de- demur- amount of bill to layed in transit delivered such num- rage therefor hav- rendered exceptions thereto, consignee’s por- daily bers as to exceed the and that rate sustained petition suing and also that tion exceeded presumed appeal out, pellee’s it will be not stricken facilities for within the changed , his mind. free for which the would not occurred. total amount <§=>135 Carriers 12. —Where damage $643.25, legal claimed was in- of car of coal delivered bills consignee, allowing no error terest on same from amount date collection. sought therein. is also to recover for an over- charge on a car to recover for of lumber from an action consignee Calcasieu, Da., Deer, Tex., where there ob- to White delivered in the Digests <§=>ITor topic Key-Numbered other cases see same in all KEY-NTJMBER Indexes PAYNE WHITE HOUSE CO. ;.w.) legal thereof, pending date reason $185.22 sum interest from suit should any payment overcharge. originally The latter abate carrier December, control, during was made then during January, Hines, substitution of accordance with the and arrived provision abatement, act, plea Walker D. filed a *3 prays judgment first, upon based, for in accordance with that as to the original petition. Payne by overcharge claim freight and of substituted for rules of order entered record such matters were supplemental peti- same term at tion Payne of the which such the Interstate Commerce Commission States, filed. citation or that such No notice to Commission United jurisdiction issued, and defendant Hines ex- has to determine the correctness Hemp- cepted thereof, action of the court. The case district court jurisdiction county jury, hill have of the was tried before the court without did not judgment same, to recover in the absence of a and court rendered Payne plaintiff’s any appli- Agent, petition that John Barton Federal for in Septem- $974.59, from Com- thereon cation had been made to the Interstate with interest relief, Payne 1, for further a mo- merce Commission ber 1920. John Barton filed appeal complained that of in the suit tion trial and an bond and the matter for new brings Fé for Panhandle & Santa this court review. occurred case before while this Railway Company first, second, assign [1, under the control of 2] The third Railway Administration, the United States of error relate to the action of the ments plea, Aug- filing judgment and that at the time in John repre- Payne gust Agent administration of the Ad such Barton Railroad Payne, ministration, D. John Barton Walker that the reason he had no sented dismissed, having that John Hines Barton been and could not substituted as a mat be notice Payne cited, being having ter law without no should upon him, case suit, he asked that the which reason tice served that the court overruling that erred in defendant’s motion continued. having plea been over- abatement the cause be continued Such . noted, appellant. citing defendant Hines record shows in this ruled then answer, Payne, Agent, he ex- that John Barton case substituted filed supplemental various cepted grounds for Hines petition upon pleaded entering the Panhandle that and order of court before & respon- Company the trial of case. Hines Fé Santa appear Com- sible; have been railroad the action of the mental represented dismissed that appellee filing supple over the claim its mission had freight petition. attorneys claim that The same that presented railway such Com- been and the group being Payne ; arose that the cars in his motion trial new mission an un- nature of appeal in the ,in act of God ease. and on The case which caus- the track precedented fully developed washout seems to without to accumulate facts, repre ed the on the' and counsel trial court defendant; any negligence on the Payne senting time or at that this time open shipped such that the coal they represented defendant in the that show naturally permit it to es- some of objections taking as would court, making shipments therefrom; cape that exception action of the court bills public to save however, convenience for the money Regional rulings, signing various in its and that the that the attorney railway com for Hines ruling made a Director had except pany, motion for new trial. pay would for loss and administration damage in the record tak There is bill en except shipped Hines, in- certain reciting when so fire, theft, arising etc. He also stances facts above set out reference misjoinder pleaded Payne in that Hines, of causes without the substitution citation freight, notice, stating the would at or did not that the require entirely adju- appear torneys three different dications; However, qualifies also, that the would be trial court Hines. causes, shrinkage stating such as to natural that if counsel due below, here, appearing plaintiff were not route. en ion pleaded trial, .it, supplemental that since did not hear that— this suit the recites the institution of President appointed has John United States appeared by plaintiff at- and defendant “Both representative of all railroads un- jury ready trial, torneys, and a announced control, to succeed Walker der waived, being all of fact as well matters as court Hines, appointment being in virtue of D. the court. submitted to law Congress, provided Specifical- pleading act having read, an ly heard .appointment, argument counsel, being offered, (Tes. 231 SOUTHWESTERN
tice
main
party,
contend
tions
Hines was
appellee
then take
defense
party
made a
order
and anomalous
names were
Hines,
vised
decrees
making
company,
regard
versed
complainant,
substitute
without notice.' However
would be
diversity
narily
for determination
tified in
made would be
therefore
but we were then of the
179 N. W.
to final
this
Government,
of 1920
to hold that it would be sufficient
This
227 W.
litigation
the facts
the method
the case
under our
that in the substitution
To reverse this case
this court
required. However,
longer
suit
meaning
John
state,
Hines to
and his
in.
notice or citation
(Mo.)
required
and that John Barton
trial court. To hold that
to the cause
party.
that he had not made
party,
an
the trial court and make a
and does not affect the
of Gundlach v.
of this case
holding
any
is
some time
sufficient to continue
a Director
fact that he was the
said cause.”
required.
advantage
Stat.
while notice or citation is ordi-
985, and the case of Kersten v.
practice
dismissed from the case
appearance,
lower
