St. Louis, B. & M. R. Co. v. Murphy & Kay

• Citation: 131 S.W. 306
• Parties: ST. LOUIS, B. & M. R. CO. v. MURPHY & KAY.
• Decision Date: 12 October 1910
• Court: Court of Appeals of Texas

131 S.W. 306

ST. LOUIS, B. & M. R. CO. v. MURPHY & KAY.

Court of Civil Appeals of Texas.

October 12, 1910.

On Motion for Rehearing, November 2, 1910.

Appeal from Victoria County Court; J. P. Pool, Judge.

Action by Murphy & Kay against the St. Louis, Brownsville & Mexico Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Claude Pollard, C. M. Robards, and R. J. McMillan, for appellant. Fly & Daniel, for appellees.

JAMES, C. J.

The case was tried on an appeal from the county court. The amended pleading of plaintiffs Murphy & Kay alleged, in substance, that the defendant's agent agreed with them to place cars at the station of Cranell, in Refugio county, for a shipment of plaintiffs' calves and that defendant's train would take up said calves on October 4, 1907, for transportation to New Orleans; that said cars were not placed as agreed on, and plaintiffs, relying on the agreement, penned the calves at Cranell Station in the shipping pens in time to be taken up by the train on said 4th day of October; that defendant failed and refused to take up said calves on that day, and plaintiffs were compelled to hold same in the pens until October 6th, when they were taken up and moved, during which time they suffered damage in their market value in Refugio county in the sum of $2 per head, by reason of said act of defendant. The pleading alleged further in the alternative that if plaintiffs were mistaken in the allegation that the calves were damaged in their market value in Refugio county in said sum, and if there was no market value for said calves there, then that the calves were at that time and place damaged in their intrinsic value in the sum of $2 per head. The trial resulted in a judgment against defendant for $130.

The first assignment of error questions the court's charge in one particular. After charging the jury if, among other things, they found defendant's agent agreed, or by words and acts, reasonably calculated to lead an ordinarily intelligent person to believe, caused plaintiffs to believe, defendant would furnish cars and that their calves would be transported on October 4, 1907, and that it was in pursuance of such understanding that plaintiffs penned their calves at Cranell Station in time for defendant's train due to pass that day, etc., to find for plaintiffs, the court proceeded to charge as follows: "Unless you believe from the testimony that there was a definite and binding agreement and understanding between plaintiffs and defendant company's agent at Refugio, Tex., that said shipment should be loaded out from Cranell Station and transported by defendant company on the 4th day of October, 1907, but that the cars for such shipment were to be placed at said Cranell Station by October 4, 1907, and were to be moved by defendant company's train at such time as said train should come for the purpose of moving it, then you will find for the defendant and so state in your verdict." It is the clause above in quotations that is challenged, and upon the ground that it assumed that a contract had been entered into between plaintiffs and the agent to furnish cars on October 4th, when it was a controverted issue whether or not any contract had been made; and in leaving it to the jury to determine whether or not the calves were to be moved on October 4th, or at such time as it suited the convenience of the defendant.

As the above clause was worded, it was in effect a charge that the jury were to find for defendant in the event they found from the evidence that the agreement was that the car was to be placed at the station on October 4th, but not that the calves were to be moved on that day. That such a phase of the case was presented by the testimony is clear to our minds, although questioned by appellant. However, this is not the point raised by appellant's proposition No. 1 under the assignment. The point is simply that the instruction assumes as proved certain contradicted facts. In explanation of this appellant states in its brief: "Defendant expressly denied in its general denial that it had ever made an agreement to furnish a car at this point whatsoever on the 4th day of October, and in support of this denial introduced the testimony of its ex-agent at Refugio, R. F. Reed, who not only testified that he had no recollection of having ever made such a promise, but that it was his instruction and his custom never to...