M., K. T. Ry. Co. of Texas v. Moore , 47 Tex. Civ. App. 531 ( 1907 )

W. R. Moore instituted this suit against the Missouri, K. T. Railway Co. of Texas and the Pruitt Commission Company, seeking to recover damages for an alleged breach of contract for the shipment of a carload of onions from Rockwall to San Antonio, Texas. The Pruitt Commission Company filed a plea in abatement, which was sustained by the court, and that defendant went out of the case. As between the plaintiff and the railway company there was a jury trial resulting in favor of the former, and the latter has appealed.

The first five assignments of error presented in appellant's brief complain of the action of the court in ruling upon exceptions to pleadings, but the exceptions referred to are not set out or their substance stated in the brief, nor has appellant even referred us to the pages of the transcript where such exceptions can be found. Hence we decline to consider the assignments referred to, as well as several others in appellant's brief which are in the same condition.

We sustain the thirteenth and nineteenth assignments, and reverse the case because of the errors therein pointed out. The thirteenth relates to the action of the court in sustaining an objection to a question propounded by the defendant to the plaintiff. If the witness had given the answer to the question which the bill of exceptions states he would, such answer would, have tended to show that the property shipped did not belong to the plaintiff, but to the Pruitt Commission Company, as alleged by the defendant. Such answer would also have tended to show knowledge by the plaintiff of the character of the car and of its condition; and therefore his acquiescence in the use of that car by the defendant in transporting the onions. The question was proper, and the court should have overruled the objection to it.

The nineteenth assignment relates to the refusal of the court to give an instruction requested by the defendant to the effect that, if the jury found from the evidence that when the shipment arrived at San Antonio, its destination, it was not entirely worthless, then it was the duty of the consignee to receive it, and if, by refusal to do so, the damage was increased, the defendant would not be liable for such additional damage as was caused by the refusal to receive the property. The evidence presented that issue, and the instruction referred to should have been given. (Railway Co. v. Everett Long, 37 Texas Civ. App. 167[37 Tex. Civ. App. 167], and authorities there cited.)

The remarks made by the plaintiff's attorney in addressing the court on the admissibility of certain testimony, and in his concluding argument to the jury complained of in appellant's brief, were improper, and should not have been permitted. There is nothing in the record to indicate that the Railway Company was in any wise responsible for the action of the Pruitt Commission Company in filing its plea of privilege, or for the action of the court in sustaining that plea; and the plaintiff's attorney should not have been permitted to refer to those matters before the jury and attempt to make a point against the railway company on account thereof.

The matter complained of in the twenty-eighth assignment of error is not likely to occur upon another trial. However, we are disposed to agree with appellant's contention that, after a case has been submitted to a jury, no one except the court should give any further instructions or explanations. After having retired for consideration the jury returned, and stated to the court that they did not understand the meaning of a certain portion of the charge. The court did not give any additional instruction, but told the jury that they could read the charge, and, over the objection of the defendant, permitted the plaintiff's attorney to state to the jury his construction of the charge. We think the rule prescribed by the statute should have been pursued, and that no one except the court should have responded to the jury. (Art. 1321, Rev. Stats.; Bailey v. Hartman, 85 S.W. Rep., 830.)

Reversed and remanded.