St. Louis, B. M. Ry. v. Lane , 248 S.W. 59 ( 1923 )

This is a suit for damages alleged to have accrued to appellee by reason of a failure to furnish sufficient cars for a cattle shipment, and failure to furnish proper and suitable pens and facilities for receiving the cattle and caring for them, and negligence in loading and rough handling while in the cars. The suit was filed by appellee against the San Benito Rio Grande Valley Railway Company and the St. Louis, Brownsville Mexico Railway Company and was submitted on special issues to a jury, and on the answers thereto judgment was rendered in favor of appellee as against the San Benito Rio Grande Valley Railway Company for $1,465 and against the St. Louis, Brownsville Rio Grande Railway Company for the same sum, and against them jointly for the full amount, and each road was given a judgment over against the other for any sum over $1,465 it might be compelled to pay.

A brief containing 264 printed pages has been filed by appellants, containing 90 assignments of error, and 87 propositions, and although 9 pages of the brief of appellants are consumed in stating the nature and result of the suit, there is nothing to indicate the amount of the judgment or against whom it was rendered. That was disclosed in the statement under proposition No. 87. Sixty-seven authorities are cited by appellants and 42 by appellee. This is the state of the record as presented by the briefs.

We gather from the statement of facts that the cattle in question were delivered to the San Benito Rio Grande Railway Company and were received from it by the St. Louis, Brownsville Mexico Railway Company and were damaged in the sum found by the jury through the negligence of the appellant as alleged by the appellee and found by the jury.

It is provided in article 731, Vernon's Supp. 1922 Civ.Stats., that all carriers of Texas over whose lines property is transported which has been received by either of such carriers for shipment or transportation between intrastate points on a contract for carriage acted upon by such carriers shall be considered connecting lines and agents of each other. The article also provides that proof of a contract may be made by evidence, other than by a bill of lading, waybill, receipt, check, or other instrument issued by the carrier. Under this statute a verbal contract for a through shipment to point of destination would bind each of the connecting carriers whether the route was chosen by shipper or carrier, Under the terms of article 732, either or all of the connecting carriers which the person damaged may elect to sue are held liable for any damage sustained anywhere during transportation of the property, and there shall be no apportionment of damages unless the shipper requests it, but any connecting line may recover from the negligent line the damages not accruing on its line. The statute makes each connecting carrier liable for all damages occurring during transportation, and where there is a contract to furnish cars at a certain time and place, the transportation is held to have begun when the cattle were delivered under the terms of the contract. If under the terms of the contract appellee was to have his cattle in the pens, to be provided by appellant at a certain time and place, and he so placed his cattle, the cattle were then accepted for shipment by the initial carrier and the transportation began under the articles cited. Railway v. Waggoner National Bank,36 Tex. Civ. App. 293, 81 S.W. 1050. It was alleged that the cattle were delivered to the initial carrier at Rio Hondo, in Cameron county, on November 3, 1920, for shipment on its line to San Benito, and from there on the line of the connecting carrier to Edinburg, in Hidalgo county, Tex. There were allegations that the initial carrier had agreed to have six cars at Rio Hondo on October 27, 1920, and that appellee had gathered his cattle on that date, but there is no allegation of delivery until November 3, 1920. Under the allegations the cattle were not delivered nor accepted until November 3d, and it is distinctly alleged that on that date the initial carrier "agreed to safely and securely carry, convey and transport the same from Rio Hondo, Cameron county, Tex. to Edinburg, Hidalgo county, Tex." The pleadings fail to indicate that any damages accrued to appellee by reason of the delay in furnishing the cars, but show that the damages resulted from defective pens, rough handling, and delay in the transportation. There was no misjoinder of parties or action as claimed by appellants in their first proposition, but the parties were properly joined under the statute cited. What has been said in connection with the first proposition disposes of the second, third, fourth, fifth, and sixth propositions adversely to appellants.

There could be but one connecting carrier to the initial carrier in a shipment of cattle between the two points named, and the second railroad must have been in contemplation of the parties when the contract of shipment was entered into, and when the second road accepted the cattle without a written contract it became a party to the parol contract made by and between the agent of the initial carrier and appellee and is bound by its terms. The liability of the connecting carrier began when the cattle were placed in the cattle pens at the starting point. Elliott on Railroads, § 1446. The rule is that where a contract of shipment is for through transportation over a designated route, and beyond the lines of the initial carrier, each of the companies on the route accepting the freight under the contract becomes subject to the initial carrier's liabilities, and entitled to its legal exemptions under the contract. Bird v. Railway Co., 99 Tenn. 719, 42 S.W. 451, 63 Am. St. Rep. 856. Our statute places connecting carriers in Texas in the same position.

The liability of the initial carrier began as soon as the cattle were delivered to it at the place appointed for such delivery. Elliott on Railroads, § 1403; Moore on Carriers, § 130; London Ins. Co. v. Rome Railroad Co., 144 N.Y. 200, 39 N.E. 79, 43 Am. St. Rep. 752. If the liability for the safe transportation began when the cattle were placed in the pens for shipment, the liability of the connecting carrier began under the statute.

The matter of failure to furnish cars was eliminated so far as the connecting carrier was concerned by a charge requested by such connecting carrier and given by the court. The jury were required to find, and did find, damages arising from the negligence of appellant "in receiving, handling, transporting and delivering said cattle," and did not find any damages arising from a failure to furnish cars.

In his first amended petition, appellee, after alleging in detail the delivery of six cars of cattle to the initial carrier on November 3d, alleged the delivery of a seventh carload on November 7, 1920. In a trial amendment the allegation as to the seventh car of cattle was amplified, and it was also pleaded that the stock pens for shipping cattle from Rio Hondo station were at a point on the road known as Fernando, and the pens there were known as the Rio Hondo pens, and used as the shipping place for cattle for Rio Hondo station, and appellee was told by the agent at Rio Hondo that the cattle should be placed in the pens at Fernando, which was situated about three miles from Rio Hondo at the terminus of the railroad. There were no pens at Rio Hondo or nearer than Fernando. In the trial amendment it was alleged that the cattle in the seventh car were eight days on the road from Fernando to Edinburg. Amendment of a pleading during a trial is held to be within the discretion of the trial judge. Dublin v. Railway Co., 92 Tex. 535, 50 S.W. 120; Slaughter v. Hall,63 Tex. Civ. App. 473, 133 S.W. 496; Pitzer v. Decker (Tex. Civ. App.)135 S.W. 161. The trial amendment was sufficient to permit proof. The seventh proposition is overruled.

The petition was sufficient to charge negligence as against both railroad companies, and the eighth, ninth, tenth, eleventh, twelfth, and thirteenth propositions are overruled.

There was no new matter included in the trial amendment filed by appellee. It merely explained the situation and location of the pens at Rio Hondo and amplified the pleading as to the seventh car. Appellants must have known all the facts pleaded before announcing ready for trial, and the witnesses necessary to meet the original or first amended original petition would be known to meet all matters alleged in the trial amendment. Appellants could not have been surprised at the allegations in that pleading. They sought a continuance of the cause on the ground of surprise, but made no showing that they could not in a short time get the necessary testimony to meet the allegations if a short recess in the trial were taken. The trial lasted for a number of days after the trial amendment was filed, and appellants might have overcome their surprise in that time. The fourteenth, fifteenth, and sixteenth propositions are overruled.

The seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second propositions are mere reiterations of matters discussed hereinbefore, are not meritorious, and are overruled.

It was not error to permit appellee to give an opinion as to the effect of certain loading on cows in a certain condition. The evidence was not objected to because not that of an expert, but because it was the conclusion of the witness in which there was no merit. He stated facts, not conclusions. The twenty-third proposition is overruled.

The cross-examination of Lane as to market value of cattle, as proposed by appellants, was unreasonable, and the court properly denied such a line of cross-examination, which would have had no result except to prolong a trial, unnecessarily prolonged anyway, and interpolate other trivial matters among the numerous ones dragged into this record. Neither was it permissible to permit testimony to the effect that appellee could have driven his cattle to San Benito or Harlingen and loaded them there and not have used the initial carrier's line at all. This testimony was utterly impertinent. Appellee might have driven his cattle all the way to Edinburg and avoided both lines, but that was not a defense to the negligence of the common carriers which under the law he saw fit to utilize. It may have been contributory negligence for appellee to use either or both of the two lines, in the light of the facts; but we do not think that it was a defense to this action. The twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth propositions are overruled.

The thirtieth proposition assails the action of the court in confining objections to testimony to the attorney for appellants who at the time was conducting an examination, and this is made the subject of assignment and proposition; but it does not appear that any injury resulted to appellants thereby. The time consumed in the trial and the voluminous record would indicate that matters would have been bettered by other denials of expansion.

It was a matter of no concern or importance whatever as to the ownership of the pens at Fernando. The cattle were placed in them with the knowledge and consent of the initial carrier and were received by it in the pens. The thirty-first and thirty-third propositions are overruled.

Appellee alleged that he had a contract with the initial carrier and proved an oral contract as he had the right to do under his pleadings. There was no evidence tending to show that a written contract was entered into by appellee, and it would have been the grossest error to have permitted appellants to have introduced in evidence a written contract prepared by it but not signed nor, so far as the record discloses, ever heard of by appellee. He shipped under a parol contract alone and knew nothing of any written contract. The numerous decisions cited fail to sustain the thirty-second proposition, and it is overruled.

The court very properly refused permission to appellants to use the "Fort Worth Daily Live Stock Reporter" in order to show by its reports what the value of cattle was in Fort Worth on the 2d 3d, and 4th of November, 1920. The market value of cattle in Fort Worth, over 500 miles distant from Rio Hondo or Edinburg, had no more pertinency to the facts of this case than the value of cattle on those days in New York or Boston. The thirty-fourth proposition is overruled.

The thirty-fifth, thirty-eighth, thirty-ninth, and fortieth propositions are utterly without merit and are overruled.

The jury requested, after their retirement, that the evidence of one Cantu on a certain point be read to them by the court reporter. We can see no impropriety in this, and the authorities which appellants deemed of so much importance as to copy with a pen into the brief have no relevancy or pertinency to the contention of appellants. The evidence of Cantu had been taken down by a court stenographer, and it was read to the jury in the presence of the court and parties. The thirty-sixth and thirty-seventh propositions are overruled.

The forty-first to the eighty-seventh propositions, inclusive, are overruled. They seek to present matters already discussed and disposed of herein. Our conclusions of fact dispose of a number of them. Every question of any importance should have been fully presented to this court in a brief of 50 or 60 pages, with not more than 12 or 15 propositions of law discussed. It is merely an ordinary case of damages arising from a cattle shipment.

The judgment is affirmed.

On Motion for Rehearing. Appellant cites the cases of Railway v. Lock (Tex. Civ. App.)209 S.W. 181, and Railway v. Cox (Tex. Civ. App.) 221 S.W. 1043, six times in its motion for rehearing, but in spite of that fact neither has any applicability to the facts of this case. In the first-cited case the initial carrier refused to be bound beyond its own line and insisted on limiting its liability to its own line; the court held there was no through shipment. No such facts appear in this case.

In the other cited case it was held that in order to recover from a terminal carrier for damages caused by preceding carriers the plaintiff must plead that the shipment was made on a contract for through carriage. In appellee's petition herein it was alleged that the cattle were received by the initial carrier at Rio Hondo "and there accepted to be safely and securely carried and conveyed over its said road and the defendant's connecting line of road from Rio Hondo, Cameron county, Tex., to Edinburg, Hidalgo county, Tex." If that language does not mean a through shipment, it cannot be expressed. There was no contract confining damages to the line of the initial carrier.

This court correctly held that there was, and could be, only one connecting carrier with the initial carrier, between Rio Hondo, in Cameron county, and Edinburg, Hidalgo county. That fact is judicially known to any Texas court.

It was sufficiently alleged that there was a seventh car of cattle, and while the initial carrier may have received and transported the cattle without knowing that they were placed in the pens, we are not willing to so find, but insist on the conclusion that the cattle were placed in the pens at San Fernando with the knowledge and consent of the initial carrier.

There is no merit in the motion, and it is overruled.