95 S.W. 651 | Tex. App. | 1906
This suit was instituted in the District Court of Mitchell County on the 26th day of November, 1904, for damages to 433 cows shipped from Colorado City on the 18th day of December, 1902, to Fort Worth, Texas, and thence to East St. Louis, *336 Missouri. It is alleged that appellees ordered cars for the shipment in question for the 28th day of November, 1902, but that appellant failed to furnish them until said 18th day of December; that during the enforced delay appellees were compelled to hold their cattle at certain specified expenses in insufficient pastures, whereby the cattle greatly depreciated in weight and market value. It is also alleged that after the shipment began there was negligent delay, rough handling, etc., whereby the cattle were injured.
Appellant in answer, among other things, pleaded in abatement to the effect that the order for cars declared upon by appellees was for twenty-five cars altogether, within which appellees intended to ship and afterwards did ship about 117 head of cattle to Kansas City, Missouri, and 84 head to the cattle market at Fort Worth, Texas; that the said 117 and said 84 cows were parts of the same herd of cattle, which included those involved in the present controversy; that as before stated the cars for the entire shipment were ordered at the same time, that the shipments were made upon the same date and upon like contracts, the difference being only as to points of destination; that two separate suits prior to the filing of the plea had been instituted by the appellees in the County Court of Mitchell County for damages to said 117 cattle shipped to Kansas City and to said 84 cattle shipped to Fort Worth; that the greater part of the damage claimed by appellees in each of said suits as well as in this suit, was because of the alleged negligent delay in the delivery of cars; that one of said suits in the County Court had been prosecuted to judgment and was still pending on appeal in this court; that the other suit in the County Court was still pending therein, and appellant prayed that at least that part of the appellee's action in this suit based upon the claim for damages because of delay in the delivery of cars, be abated.
The facts proven upon the trial supported the plea in abatement, and appellant by special charge No. 1 sought to have the jury instructed in accordance with its prayer, in event the jury should find the facts as alleged in the plea. This charge was refused and the court peremptorily instructed the jury to find against appellant on said plea. The trial resulted in a judgment for appellees for the full amount claimed, to wit, $1,690.26.
We think the court erred in refusing the charge mentioned and in giving the peremptory instruction stated. The facts without dispute show that the cattle constituting the three shipments mentioned in the plea of abatement, composed a single herd; that the order for cars was for such number as was sufficient for the shipment of the entire number; that it was but a single order; that the shipments were all made at the same time and upon contracts limiting appellant's liability to its own line; that the damages sought in each case was composed largely of damages done appellee's cattle at Colorado City, consequent upon delay in the delivery of cars; that one of the suits was still pending and being prosecuted by appellees in the County Court; that the other had been prosecuted to judgment in their favor, and was still pending in this court. Appellees having prosecuted even to judgment prior suits in which the precise issue was presented, they should not have been permitted to again litigate the same matter in this suit. The fact that *337
in the prior suits the result of the alleged delay in furnishing cars to the particular cattle involved in this shipment was not considered, can not alter the rule. The case is not other in principle than if appellee had instituted separate suits for the recovery of the damages done to each car of cattle, rather than to each trainload involved in the entire shipment. The vice in the procedure is in the attempt to subdivide or split up the cause of action. The cause of action for damages occurring at Colorado City was a single one, viz., a negligent failure to deliver cars after order therefor, which operated upon and resulted alike to all of appellee's cattle at the same time, and all of the consequences proximately flowing from the single act of negligence should have been included in a single suit. To allow needless separate suits upon the same cause of action is to impose unauthorized penalties upon the offending litigant, and to require of the courts repeated determination of the same issue, a practice that needs only to be stated in order to receive condemnation. See Freeman on Judg., sec. 241; St. Louis S.W. Ry. v. Moss, 9 Texas Civ. App. 6[
Appellant does not assert as a proposition under any assignment of error that the matter in abatement pleaded and proven will exclude recovery for damages, if any, resulting from appellant's independent separate negligence and wrongs, if any, after the transportation of the cattle in question began, and we are not inclined to so hold. In view of another trial, therefore, we suggest that the court should have permitted the introduction of the evidence set out in appellant's first assignment of error. Clauses 8 and 8a of the court's charge, to which objection is made, apply only to damages done at Colorado City while waiting for cars, and of course fall with that issue.
For the error of the court in its rulings upon the plea of abatement, the judgment is reversed and the cause remanded.
Reversed and remanded.
