215 S.W. 864 | Tex. App. | 1919
Holmes sued in the county court of Baylor county the Wichita Valley Railway Company, C. E. Schaff, as receiver of the Missouri, Kansas Texas Railway Company and the Missouri, Kansas Texas Railway Company of Texas, for damages to a shipment of cattle from Bomarton, Baylor county, Tex., to Kansas City, Mo. The negligence charged was a delay of 24 hours over the schedule or usual time for the shipment and the negligent and rough handling of the cars, so that the cattle were damaged and injured. There is no allegation that the appellant refused to unload, feed, water, and rest the cattle, as required by the statute. Upon the verdict of the jury in answer to special issues the court rendered against Schaff, receiver, $195, and the jury found nothing against the Wichita Valley Railroad Company, and no judgment was entered against it.
The first assignment will not be considered over appellee's objection, in that the assignment in the brief is not a copy of the assignment filed in the court below, but a reconstructed assignment. See Schaff v. Fancher et al., No. 1520,
The second assignment urges there was error in giving appellee's requested charge, which instructed the jury that if they found "that the cattle in the shipment in question in this case were held in the cars for an unreasonable length of time without being unloaded for feed and water and rest, and that such act, if any, was due to the negligence of defendants," and that by reason thereof the cattle sustained injury, they would find for plaintiff such damages by reason of such negligence in respect to any of the matters submitted in the issues submitted by the court The objection urged to giving the charge was because there was no pleading justifying or warranting such charge. As stated above, there was no allegation charging a failure to unload for feed, water, and rest. While appellant does not assert error in submitting special issues on this point, we find that the appellees requested such issues, and the court asked the jury if the appellants kept the cattle on the cars for a longer period than 28 hours without unloading for feed, water, and rest, which the jury answered in the affirmative, and also if the appellants kept the cattle in the cars without unloading, etc., for a longer period than 36 hours. If so, how long in hours? The jury answered, "Yes, six hours." The pleadings presented no such issues, and it was error to submit them. We are unable to say this charge did not influence the jury in finding damages and the amount thereof. The charge should not have been given, nor the issues submitted as above pointed out under the issues made by the pleadings.
The third assignment is not properly briefed, and should be disregarded. However, the answer of the witness to the interrogatory as to the general condition of the market in the latter part of the week and the reason therefor perhaps was immaterial. The issue was: What was the market on the days inquired about? The witness stated he knew, *865 and we think he could give the difference. The objection that he does not there state what market he was referring to, whether New York, Chicago, or somewhere else, we think not well taken. The witness shows what market he was buying on, and where and when the cattle were purchased. At this place, perhaps we should state the market value of cattle, etc., has to be ascertained by inference and not by direct testimony. The case was not fully developed. The assignment does not, however, present such error as would require a reversal.
The fourth assignment is to the action of the court in permitting the introduction of the account sales, as evidence, which was attached to the deposition of Le Bow, on the ground it was not shown to be a true and correct account of the actual facts as they existed, except as to the weight of the cattle and to all other portions thereof objections were urged. The account sales shows and gives the names of the purchasers, the kind of cattle, and the number, the weight, price per hundred, and the total amount. The objection appears also to apply to the unloading certificate, which gives the car numbers and the initials, the weight of the car, the rate, amount of freight, freight charges, yardage, pounds of hay, commission on sales, etc.
Under the statement following the assignment we might assume the trial court found that the necessary preliminary proof was made for the introduction of the account sales, and the unloading certificate. As the statement does not show what the evidence was with reference to keeping the account or entering it upon the books, or in making out the account sales, or whether there was any testimony as to its correctness, and the bill of exception is in the same condition, there is nothing shown in the statement or the bill of exception other than the account sales j and the objection made. But as we have concluded to reverse the case under assignment No. 2, we will give our views as to the admissibility of the account. The witness C. L. Le Bow, was the cattle salesman, who sold the cattle as an employe of the commission company. He does not testify as to the grades of the cattle, number, the price for which they sold or their market value, or any other item shown in the two instruments, the account sales and unloading certificate. Appellee introduces the account sales upon the following predicate taken from Le Bow's testimony:
"As requested, I am attaching a copy of the account sales (marked Exhibit A, by the notary for identification), covering this shipment also unloading certificate (marked Exhibit B by the notary for identification), showing the time these cattle were unloaded. The copy of the account sales attached is a true and correct copy, and shows the correct weights of the cattle. The said copy of the account sales attached was taken from the books of the National Live Stock Commission Company, that are kept in the regular course of the business of selling cattle. The entries made on the account sales were made by one of our bookkeepers, and it is our custom to have such entries made directly after, and from the data furnished by the weighmaster. This account sales and the record hereto attached was handled every way in the usual manner of our company."
This is all the evidence as to the correctness of the account. The account sales, as will be seen from the evidence above, was inadmissible, and is in that class of cases holding that it is hearsay. Railway Co. v. Startz,
Assignments 5 and 6 present no reversible error, and will be overruled.
The judgment as to the receiver, Schaff, will be reversed and remanded, but affirmed as to the Wichita Valley Railway Company, not appealing, and there are no cross-assignments as to the judgment in its favor.