92 S.W. 57 | Tex. App. | 1906
The court erred in striking out the answer of appellant setting up a contract of shipment limiting its liability to its own line, since, although the shipment was one between points in this State, the petition failed to allege that the cattle had been received by appellant for through shipment "on a contract for through carriage," as provided in article 331a, Revised Statutes, and the answer denied the existence of any such fact or contract.
The court also erred in finding that appellant had undertaken to deliver the cattle to the Fort Worth Stock Yards, since the statement of facts fails to contain any evidence on that subject. The evidence went no further than to show that the ultimate destination of the cattle was the Fort Worth Stock Yards in North Fort Worth, and that the owners had delivered them to appellant at a station on its road in order that they might be carried there and sold on the market. We find no evidence that appellant undertook to do more than carry the cattle to its station at Fort Worth, or rather to Belt Junction the nearest point on its road to the stock yards. It may be that appellee could have shown that the relation between appellant and the carrier from Belt Junction to the Fort Worth Stock Yards was such as to render the undertaking of appellant in the first instance one to deliver the cattle at said stock yards, but without such proof the court was not warranted in assuming the existence of any such relation. Although in other cases which have come before us the proof may have established that the company operating between Belt Junction and the stock yards was but the instrument of appellant in making transfers of live stock from its own to connecting lines extending beyond Fort Worth, we can not take judicial knowledge in this case of any such fact.
There is also a serious question as to the sufficiency of the petition to warrant the recovery had of damages for a decline in the market from December 14 to December 15, 1904, which can be easily cured on another trial.
For the error first pointed out, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded. *405