P. N. T. Ry. Co. v. Hughes , 44 Tex. Civ. App. 135 ( 1906 )

W. L. Hughes and B. F. Peeples sued appellant and several other railway companies for damages and recovered judgment against appellant for eleven hundred and fifty-one dollars, from which this appeal is prosecuted, and against the Pecos Valley Northeastern Railway Company for one hundred and fifty dollars, from which no appeal was taken. The ground of recovery against appellant was its failure to deliver to its succeeding carrier a car of horses shipped by Hughes and Peeples from Roswell, New Mexico, to Augusta, Georgia, via Amarillo, Fort Worth and New Orleans. Instead of delivering this car of horses to the Fort Worth Denver City Railway Company at Amarillo, as appellant, according to the contention of the appellees, had undertaken to do, it there arbitrarily changed the route originally designated by appellees and known as the southern route, by writing "Cherryvale, Kansas," on the way bill, and then delivered the horses to the Southern Kansas Railway Company of Texas. When the horses reached St. Louis over the route to which they had thus been deviated, known as the northern route, they were so badly damaged that the next carrier refused to receive them and they had to be sold for what they would bring there, which was nothing of consequence, as they had become practically worthless. One important ruling was made by the trial court in the admission of testimony, at the persistent insistence of counsel for appellees and over the objections of counsel for appellant, which we have been unable to approve, the court twice correctly holding in the course of a long preliminary examination and cross examination, that W. L. Hughes, on whose testimony alone the appellees relied to prove the value of the horses at the place of destination, had not qualified himself to testify as to the market value of the horses there, but finally, and erroneously we think, holding that he had. To sustain this ruling counsel for appellees quote from the stenographers' notes more than a dozen printed pages of questions and answers taken down in the course of said preliminary examination, which is itself suggestive of a want of knowledge on the part of a witness interested in qualifying himself, else much less space would have been required. These questions and answers, which are too numerous to be here quoted, have been carefully read and considered in consultation, and while the case lies near the border line between the admissible and inadmissible, we have reached the conclusion that we could not approve the ruling complained of without disregarding the following precedents cited by counsel for appellant in opposition to it: Southern Pac. Ry. Co. v. Maddox, 75 Tex. 300; Texas P. Ry. v. Crowley, 12 Texas Ct. Rep., 690; Missouri, K. T. Ry. v. Allen, 13 Texas Ct. Rep., 304; Texas P. Ry. v. Arnett, 13 Texas Ct. Rep., 547; Texas N. O. Ry. v. White, 1 Texas Ct. Rep., 742, and Cameron M. E. Co. v. Anderson, 9 Texas Ct. Rep., 333. True, in answering these questions Hughes freely and repeatedly stated that he knew the market value of the horses in question at Augusta, Georgia, at the time they should have arrived there, but other answers made by him disclosed that his knowledge of the horse market at that time and place was but a reproduction of what had been communicated to him through letters and telegrams received from persons in Georgia and South Carolina, who were not even shown to have had any knowledge of the Augusta market. For instance, he had been in correspondence with his partner, B. F. Peeples, who lived in South Carolina, about forty miles from Augusta, the market to which he shipped his cotton and other farm products, and also with his brother-in-law and one Mr. Dykes, a horse dealer. They seem to have given him information as to the state of the horse market at Augusta a short while before he shipped the horses in question and as to whether it would be advisable to ship to that market. From this it may be inferred, perhaps, that his communicants knew or had investigated the market at Augusta, and might themselves have been competent witnesses, but what they wrote and wired him was clearly inadmissible. (Western U. Tel. Co. v. Bradford, 91 S.W. Rep., 818.) In addition to this, Hughes had sold horses on the Augusta market the year before and had since occasionally noticed sales of horses in a newspaper sent him in New Mexico, where he lived, from Augusta and in one published in a town thirty miles from Augusta, but these papers did not purport to contain market reports. He also made inquiries in Augusta a year later, of persons who had had an opportunity to know, as to what had been the state of market the previous year. There are authorities which seem to hold that a witness might thus qualify himself to testify as to market value at a given time and place, but we understand the decisions of our Supreme Court to be against this view. Taken altogether, the preliminary examination of W. L. Hughes, in our opinion, did not warrant the admission of his testimony as to market value in Augusta, Georgia, of the horses in question at the time they should have arrived there. Evidently this fact was susceptible of proof otherwise, and we would not be warranted in stretching the rules of evidence to relieve a situation which, for aught that appears, might easily have been avoided by the appellees.

As to the validity and effect of the shipping contract pleaded by appellant, two of the three clauses relied on, one arbitrarily fixing the amount of the damages and the other entirely relieving the carrier from damages resulting from certain named risks and from "any and all other causes whatever," are contrary to public policy as declared by the Supreme Court of this State. The validity of a clause similar to the third is involved in the case of Railway v. Evans, Snider, Buel Co., now pending in that court on writ of error. Whether provisions in a shipping contract limiting the liability of a common carrier so as to even relieve it, in a measure at least, from the consequences of its own negligence, should be upheld by the courts of Texas where, as in this instance, such provisions are valid in the jurisdiction where the contract was made, is the question we are asked to decide; but inasmuch as the liability of appellant in this case depended on deviation, as above indicated, that alone would deprive it of the exemption claimed. (4 Elliott on Railroads, sec. 1515.) We need not, therefore, determine the question submitted.

Because of the erroneous ruling on the admission of testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.