Clegg v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 05 February 1910
• Citation: 127 S.W. 1098
• Parties: CLEGG v. GULF, C. & S. F. RY. CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

127 S.W. 1098

CLEGG v. GULF, C. & S. F. RY. CO. et al.^†

Court of Civil Appeals of Texas.

February 5, 1910.

Rehearing Denied April 16, 1910.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

Action by T. J. Clegg against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed in part. Reversed and remanded in part.

Bell & Milam, for appellant. Chas. K. Lee, for appellees.

DUNKLIN, J.

On or about April 14, 1906, T. J. Clegg shipped approximately 2,080 head of cattle from San Angelo, Tex., to Red Rock, Ind. T. The Gulf, Colorado & Santa Fé Railway Company transported them from San Angelo, Tex., to Purcell, Ind. T., and the Atchison, Topeka & Santa Fé Railway Company transported them from Purcell to Red Rock. Clegg sued both companies for damages to the cattle, and, from a judgment in favor of the defendants, he has appealed.

In his petition he alleged that the cattle were unnecessarily delayed in shipping, roughly handled, and were without water for un unreasonable length of time, by reason of all of which some of the cattle died, and the market values of others were greatly depreciated. At Red Rock the cattle were placed in a pasture to be grazed preparatory for market in the following fall. They were shipped from a section of the country south of the quarantine line, and as Red Rock was north of that line, under the quarantine regulations, it was necessary to dip them in crude petroleum oil before they were taken from the stockpens at Red Rock. In his petition plaintiff alleged that prior to the shipment the Atchison, Topeka & Santa Fé Railway Company, through its duly authorized agent, contracted and agreed that it would furnish water for the cattle in its stockpens at Red Rock upon their arrival, to the end that they might be watered before they were dipped. The cattle were dipped in crude petroleum oil as a preventive against the dissemination of Texas splenetic fever to other cattle in that vicinity. Plaintiff further alleged that there was no water in the pens at Red Rock upon the arrival of the cattle, that the cattle, being very thirsty, were thereby caused to drink the oil while being dipped, and by reason thereof suffered injury, from the effects of which some of them died and the market values of others depreciated. Plaintiff further alleged that the tendency of cattle to drink the oil under such circumstances was discussed between plaintiff and the agent of the Atchison road at the time said contract was made by that company, and that the assurance by that company that it would furnish water for the cattle in the pens at Red Rock was the inducement which led him to route the cattle over the road of the last-named defendant. The issue whether or not cattle when thirsty will drink petroleum oil while being dipped in it was sharply contested. Many witnesses testified in the affirmative and many testified to the contrary. In support of his contention that cattle will drink oil under such circumstances, plaintiff took the deposition of E. A. McCoy, but the deposition was suppressed on motion of the defendant. At the time the deposition was taken another suit was pending in the district court of Brown county, in which E. A. McCoy was seeking to recover damages of the same railway companies to a shipment by him, and in which the said McCoy was claiming that his cattle on account of thirst drank petroleum oil while being dipped, that they were thereby injured, and in that suit he was seeking to hold the railway companies liable for such injuries. His deposition was taken by W. J. Scott, notary public, who at the time of taking the same was the attorney for E. A. McCoy in the suit which had been so instituted by that witness, and this relation between the notary and the witness was the ground upon which the deposition was quashed. We do not think there was any error in suppressing the deposition. The following quotation from the Cyclopedia of Law and Procedure, vol. 13, p. 851, we believe to be a correct announcement of the law controlling on such questions as established by the great weight of authority: "The commissioner must stand indifferent between the parties. If he directly or indirectly bear to either party such a relation as will authorize a presumption of bias or prejudice in favor of or against either party, he is not competent." The principle thus announced is recognized substantially in the following decisions: Rice v. Ward, 93 Tex. 532, 56 S. W. 747; Blum v. Jones, 86 Tex. 495, 25 S. W. 694; Floyd v. Rice, 28 Tex. 341; Swink v. Antony, 96 Mo. App. 420, 70 S. W. 272; McMahan v. Veasey, 60 S. W. 333; Testard v. Butler 20 Tex. Civ. App. 106, 48 S. W. 753; 4 Encyclopedia of Evidence, 372.

George L. Miller, after testifying in plaintiff's behalf that cattle would drink petroleum oil while being dipped, if thirsty, was asked by defendants' attorney on cross-examination if he did not entertain unfriendly feeling towards the Atchison, Topeka & Santa Fé Railway Company. The witness answered that he had entertained such a feeling a good many years ago, but that he entertained none at the present time. Thereupon defendants' counsel proceeded to propound a question to which objection was made and sustained before the question was concluded; the part of the question asked before objection was made being as follows: "Is it not a fact that your father was indicted? * * *" The jury were then retired and defendants' counsel permitted to propound the question as he originally intended it; the question being whether or not witness' father was not indicted for alleged participation in the killing of one Montgomery, who was a special agent of the Santa Fé Railroad at Winfield, Kan., and if witness and his family did not believe that the Santa Fé Railway Company was instrumental in the prosecution, and if the witness and his family did not feel unkindly towards the Atchison, Topeka & Santa Fé Railway Company on that account. The plaintiff's objection to this question was sustained, but appellant insists that for such a question to be propounded in the presence of the jury was prejudicial to plaintiff's case as evidenced by the verdict...