Davis v. Hill

• Decision Date: 03 March 1925
• Docket Number: (No. 6833.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 281
• Parties: DAVIS, Agent, v. HILL et al.
• Court: Texas Court of Appeals

Page 281

271 S.W. 281

DAVIS, Agent, v. HILL et al.

(No. 6833.)^*

Court of Civil Appeals of Texas. Austin.

March 3, 1925.

Rehearing Denied April 8, 1925.

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

Action by Sam H. Hill and another against James C. Davis, Agent. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

C. K. Lee, of Fort Worth, and Wright & Harris, of San Angelo, for appellant.

Collins & Jackson, of San Angelo, for appellees.

BLAIR, J.

On October 18, 1919, appellees Sam H. and Will Hill shipped five cars of fat, registered Aberdeen-Angus show cattle from San Angelo, Tex., to Atlanta, Ga., and thence to Columbia, S. C., where they were intended for auction sale. This suit, filed December 20, 1920, is for damages for injuries to said cattle, caused by certain alleged, unusual, unnecessary, and negligent delays between San Angelo and Houston, and because the cattle were negligently confined in the cars between San Angelo and Houston for more than 28 and for as much as 36 hours without being unloaded for "feed, rest, and water," and in violation of the federal laws governing such matters; that, because of such negligence, the cattle arrived at destination in bad condition, and as a result they were worth $30 per head less than what they would have been worth but for the negligence of the carrier.

Appellant answered by general denial and specially pleaded that, because of the government's use of the railroads during the war, the equipment had been greatly overburdened, and was in a demoralized and run down condition, rendering the usual and customary service impossible; that, if the cattle were injured as alleged, such was the result of the shipper's lack of care, or due to the inherent defects in the cattle themselves.

The jury found that the cattle were negligently delayed between San Angelo and Houston, which caused injury thereto at destination; that the cattle were negligently confined in the cars more than 28 and 36 hours without feed, rest, and water, which proximately caused or contributed to their injury and damage at destination. The seventh special issue and the jury's answer thereto are as follows:

"What do you find to be the difference in dollars and cents between the value of plaintiffs' cattle in the condition in which they actually arrived at destination, at the time of their arrival, and what would have been their value at such time and place, if they had been carried in the usual and ordinary time and manner and without negligence?" Answer: "$2,500."

Judgment was rendered for appellees upon this verdict, from which this appeal is perfected.

Appellees' counsel suggest that, if this court ever held attorneys to a strict account for the manner of briefing a case, they would be inclined to object to our considering appellant's brief as a whole, because not in compliance with the new rules of briefing. Appellant's brief does not comply with either the new or old rules of briefing, and as a result the labor of counsel for appellees, as well as this court, has been greatly increased. For instance, appellant set out 190 points or propositions of law and does not specifically brief any particular point or proposition. Practically the whole of the evidence is set out under the designation, "The Testimony," without reference to any particular point or proposition. The argument is generally addressed to the whole case without any particular reference to a point or proposition relied upon. The brief thus prepared consists of a printed book containing 213 pages. Counsel can very materially aid the courts in disposing of their congested dockets by properly and concisely briefing their cases. However, so far as we have been able to ascertain, the Supreme Court has not up to this time required a strict compliance with the new rules of briefing. Counsel for appellant who prepared the brief has filed a written argument, in the nature of a reply brief to appellees' brief, in which he states that matters over which he had no control are responsible in part for the condition of the original brief. In this reply brief some 3 or 4 of the 130 points or propositions relied upon by appellant are briefed and present error requiring a reversal of the case.

Appellant complains that special issue No. 7, supra, did not submit the proper measure of damages. The measure of damages submitted by this issue was the value of plaintiffs' cattle in the condition in which they actually arrived at destination and at the time of their arrival, and what would have been their value at such time and place if they had been carried in the usual and ordinary manner, etc. This charge does not instruct the jury to find either the intrinsic, market, or reasonable value of the cattle at destination. The measure of damages to a shipment of live stock caused by delay is the difference in their market value in the condition in which they arrived at the point of destination, and in which they would have been but for the negligence complained of. Only in instances where there is no market value at point of destination are the courts authorized to find the reasonable or the intrinsic value of the stock shipped. A market value at destination for the class of cattle included in this shipment was shown. The measure of damages, therefore, must be governed by the general rule. Railway v. Nixon, 52 Tex. 19; Railway v. Stanley, 89 Tex. 42, 33 S. W. 109; Railway v. Le Gierse, 51 Tex. 189; Railway v. Berchfield, 12 Tex. Civ. App. 145, 33 S. W. 1010; Railway v. Roberts, 60 Tex. Civ. App. 145, 126 S. W. 890; Railway v. Jones, 104 Tex. 92, 134 S. W. 328; San Marcos Oil Co. v. Soyars (Tex. Civ. App.) 265 S. W. 173; Railway v. White, 110 Tex. 585, 222 S. W. 963; Hines v. Edwards (Tex. Civ. App.) 228 S. W. 1117.

Special issue No 7 is erroneous, because it made the test of liability of the railroad company the failure to carry the cattle "in the usual and ordinary time and manner," etc. In the first paragraph of the court's charge the jury are instructed that:

"It is the duty of common carriers handling live stock to exercise ordinary care to transport the same with reasonable diligence and dispatch, and that failure to exercise such care on the part of the carrier or any of them handling plaintiffs' stock would constitute negligence."

The special issue did not follow this correct charge on the law. The test fixing liability of the carrier for damages for delay is that it failed to transport the cattle with reasonable diligence and dispatch. Railway v. Crowder (Tex. Civ. App.) 157 S. W. 281; Railway v. Isenhower, 62 Tex. Civ. App. 223, 131 S. W. 297; Railway Co. v. Bryson & Burns (Tex. Civ. App.) 195 S. W. 1165; Railway Co. v. Hurst & Riley (Tex. Civ. App.) 135 S. W. 599.

The evidence showed that appellees shipped about 111 head of fat, registered Aberdeen-Angus cattle, 10 bulls, some cows, and heifers. Shipment was delayed at Lometa on account of a part of the cars on the same train and in the rear of the cattle cars derailing. No cause was shown for such derailment, except the general assumption that the deteriorated condition of the roadbed and rolling stock, due to the government's use of them during the war, caused it. The shipment reached Temple after being on the cars for a little more than 36 hours, where they were unloaded, fed, and watered. The shipment was reloaded at Temple on the following day, and after several hours delay proceeded to Bellville, where it was again delayed for several hours on account of hot boxes so delaying the train that it was unable to make connection with local trains running into Houston. The shipment reached Houston, after being on the road from Temple about 30 hours. Appellees were required under the law to have the cattle examined for tuberculosis before leaving the state, and requested appellant carrier to deliver the cattle to them at the Union Stock Yards at Houston for this purpose. These pens did not belong to the carrier. The carrier was compelled to deliver the cattle to the Belt Line in order to have it deliver the shipment to the Union Stock Yards. Some 8 or 9 hours delay was experienced in this transfer before they were finally unloaded. According to the drover accompanying the shipment, the cattle were in a very bad condition when they reached the Union Stock Yards, because of long delays and confinement in the cars for such long period of time without having rest, feed, or water, and, according to the witnesses for appellees, they still showed at the time of arrival at destination some bad effects of these long delays and confinement in cars. Appellees kept the cattle 3 days in the Union Stock Yards before the shipment proceeded, being the time required to make the tuberculosis test. The pens were very muddy during all this time, and the cattle became splashed with mud. The shipment then proceeded to Atlanta, Ga.; thence to Columbia, S. C., and appellees testified as to delays at Montgomery,...