Cathey v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 18 January 1911
• Citation: Cathey v. Missouri, K. & T. Ry. Co. of Texas, 133 S.W. 417, 104 Tex. 39 (Tex. 1911)
• Parties: CATHEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Supreme Court

133 S.W. 417

CATHEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Supreme Court of Texas.

January 18, 1911.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Mrs. M. W. Cathey against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment of the Court of Civil Appeals (124 S. W. 217), affirming a judgment for defendant, and plaintiff brings error. Reversed and remanded.

Carden, Starling, Carden & Hemphill, for plaintiff in error. Thomas & Rhea, for defendant in error.

RAMSEY, J.

This suit was instituted in the district court of Dallas county by Mrs. Cathey against the Missouri, Kansas & Texas Railway Company of Texas for the sum of $3,605 for the destruction of certain property belonging to her by fire, due to and occasioned by the negligence of certain employés of said company. On trial a verdict and judgment was rendered for the company. On appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District the judgment of the court below was reversed. On rehearing, this reversal was set aside, and a judgment rendered affirming the judgment of the trial court.

1. In the opinion of the Court of Civil Appeals it was correctly held that there was error in permitting the witness Tateman to use the register purporting to show the time that passenger trains passed the yards of the company at the place where the fire occurred on the date of such fire, and to read and state to the jury the time when the company trains passed said yards, it appearing that while the witness had made such entries in said register on the date of the arrival and departure of such trains that such entries were made from slips or cards prepared and furnished him by employés operating same, which cards were then in his possession and not produced. In this connection it should also be stated that these agents were not shown to have left the employment of the company, nor was there any showing made that their testimony could not have been produced. It was not contended that Tateman had any knowledge of the times of the arrival and departure of trains except such as came to him from the original data, not produced, from which he states, and we assume states truly, he made up the register from which he testified. The time of the arrival of trains in Greenville where the fire occurred was a matter of first importance. The testimony of Tateman touching these matters was therefore undoubtedly material. That it was, under the circumstances, inadmissible cannot, we think, under the authorities, or on reason, be doubted. Missouri Pac. Ry. Co. v. Johnson, 7 S. W. 838; Railway v. Leggett (Tex. Civ. App.) 86 S. W. 1066; W. U. Tel. Co. v. Christenson (Tex. Civ. App.) 78 S. W. 744; Railway Co. v. McLeod (Tex. Civ. App.) 115 S. W. 85. The treatment of this question by the Court of Civil Appeals in the original opinion filed in the case is so thorough and satisfactory that we do not need to say more on this point.

2. On motion for rehearing the Court of Civil Appeals set aside its judgment on original hearing, and while adhering to its opinion that the testimony considered was inadmissible, ruled that since, on cross-examination, plaintiff in error caused the witness Tateman to repeat and re-read the testimony theretofore objected to by her, that this constituted a waiver of her objection to same and precluded her from complaining of the admission of the incompetent evidence. In support of this view the court cites the following authorities: Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Gammell-Stateman Pub. Co. v. Monfort, 81 S. W. 1029; Sullivan v. Fant, 110 S. W. 507; Birkman v. Fahrenthold, 114 S. W. 428; Railway Co. v. Broon, 114 S. W. 655; Railway v. Pettit, 117 S. W. 894; Kingsley v. Schmicker, 60 S. W. 331; McDonald v. McCrabb, 105 S. W. 238. That some of these authorities do...