F.W. D.C. Ry. Co. v. McAnulty , 7 Tex. Civ. App. 321 ( 1894 )

We think the court below erred in overruling appellant's special exception interposing the statute of limitation to appellee's first amended original petition. The injury to the stock is alleged to have occurred August 26, 1887. The original petition only claimed damage for the total loss of six head of cattle, of the value of $30 each, and damage to eighty-one head, at $10 per head, making a total of $990. This petition was filed November 23, 1888. On January 17, 1891, appellee filed an amended original petition, in which he alleged the date of the injury the same as in the original (August 26, 1887), but claimed damage for the total loss of eight head of cattle, of the value of $30 per head, and damage to 350 head, at the rate of $10 each, but alleged his gross damage to be the sum of $2740. To this amended petition appellant interposed the statute of limitation by special exception to all that part of the damage claimed above that resulting to the eighty-seven head included in the original petition.

We think this exception should have been sustained. The amount of damages claimed as resulting to the original eighty-seven head was not increased in the amended petition, but the additional damage therein claimed is alleged to have resulted to other and different animals entirely. The fact that this damage may have occurred at the same time and through the same acts which caused that originally claimed, we believe, can not relieve the pleading from being the assertion of a new cause of action. If one, by the same act, should kill two horses, named A and B, and the owner should sue for the value of A only, and after the expiration of the time prescribed by the statute should amend and claim for the value of B also, we believe it must necessarily be held that this would be the assertion of a new cause of action in so far as it sought a recovery for the value of B; and we understand that to be, in effect, this case.

It must now be taken as the established law in this State, that in the absence of a contract assuming such liability, a common carrier can not be held liable for damages resulting to goods beyond its own line. In Hunter v. Railway, 76 Tex. 195, a case in which there was a special contract exempting the initial carrier from such liability, it is said: "These facts did not establish a cause of action against the defendant, because a common carrier is not liable beyond the terminus of its own line, unless it has assumed such liability by contract. Trust Co. v. Railway, 31 Fed. Rep., 247; Ortt v. Railway, 36 Minn. 396. And the fact alone that it received goods marked for a place beyond its own terminus does not import an agreement to transport to the destination named as a common carrier. Laws. on Carr., sec. 240. * * * The reason a railroad is not liable beyond its own line as a common carrier, in the absence of an express contract, is because it is not a common carrier beyond its own line. The law attaches to it no liability as a common carrier beyond the terminus of its own line, and does not compel it to act as a common carrier over other lines not within its control. Railway v. Baird, 75 Tex. 256. Hence, when this liability does attach, it must be by virtue of some contract assuming it."

Appellant assigns error to the charge given the jury, upon the ground that no through contract of carriage was charged in appellee's petition. The allegation upon this point is as follows: "That defendant was during said time a common carrier of cattle for hire, being engaged in the business of transporting cattle to and from different points in Texas where its railroad ran, and also, by means of connecting lines, to points in other States, and especially to said place of Chicago; that on the said last named day the plaintiff delivered to said defendant as common carrier, as aforesaid, at a certain station on its said road, to wit, Quanah, and defendant then and there accepted and received from plaintiff 358 head of fine, fat, beef cattle, of the value of $30 per head, to be safely and securely and expeditiously, and within a reasonable time then next following, carried and conveyed from said station of Quanah to a certain other station, to wit, Cairo, and from thence to said place of Chicago, and at said last named place to be safely delivered to one Gregory, Cooley Co., the agents of plaintiff; all for certain reasonable hire and reward to said defendant in that behalf paid by plaintiff." We think these averments sufficient, in the absence of a special exception, to charge a contract of through shipment between the plaintiff and defendant.

Appellant also assigns error challenging the sufficiency of the evidence to show a contract sufficient to charge it with liability for the damage which resulted beyond the termination of its own line; but, as the judgment must be reversed for the reason above indicated, it would not be proper for us to enter upon a discussion of the evidence.

Appellant pleaded a special contract under which it received these cattle, which exempted it from liability beyond its own line. To this answer appellee filed a general denial, and also pleaded specially, "that defendant, in violation of its duty as common carrier, and in violation of the law and statutes of this State, refused to receive plaintiff's said cattle over any part of its road unless plaintiff or his agent would sign said contract, and that plaintiff was thereby compelled to sign same; wherefore he says that said contract was obtained under duress of circumstances, and is therefore null and void, and plaintiff is not bound thereby."

Under this pleading appellant contends, that inasmuch as the execution of the contract was admitted by appellee, it was not required to produce the original upon the trial in the court below. We incline to the opinion that the general denial interposed by appellee required the production of the original instrument; or in case of its loss, necessitated proof of its execution and contents. Erskine v. Wilson, 20 Tex. 77; Robinson v. Brinson, 20 Tex. 438. The right of the defendant to interpose different and even inconsistent answers to plaintiff's cause of action has been repeatedly recognized in this State, and the principle announced in the most emphatic terms that one of these pleas can not be used to destroy the other. See Sayles' Texas Pleading, edition of 1893, section 418, for full discussion and citation of authorities.

To give appellee's special plea the effect contended for by appellant would certainly have the effect to deprive him of the benefit of his general denial altogether. We do not understand the case of Bosse v. Cadwallader, 24 Southwestern Reporter, 801, to be in conflict with this view, although it must be conceded that there are expressions used in the opinion in that case which might lead to a different conclusion.

The judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.

ON MOTION FOR REHEARING.