Fort Worth & D. C. Ry. Co. v. Brewer

• Decision Date: 04 January 1928
• Docket Number: (No. 2937.)
• Citation: 1 S.W.2d 686
• Parties: FORT WORTH & D. C. RY. CO. v. BREWER.
• Court: Texas Court of Appeals

1 S.W.2d 686

FORT WORTH & D. C. RY. CO. v. BREWER.

(No. 2937.)

Court of Civil Appeals of Texas. Amarillo.

January 4, 1928.

Rehearing Denied January 25, 1928.

Appeal from Hall County Court; A. C. Hoffman, Judge.

Action by R. R. Brewer against the Fort Worth & Denver City Railway Company. A judgment for plaintiff in justice court was affirmed on appeal to the county court, and defendant appeals. Reversed and rendered.

Elliott & Moss, of Memphis, Thompson & Barwise, of Fort Worth, and Turner, Culton & Gibson, of Amarillo, for appellant.

RANDOLPH, J.

This suit was instituted in justice court of Hall county, Tex., by R. R. Brewer against appellant railway company, to recover the sum of $178 penalty for failure to deliver a certain carload of freight.

Plaintiff recovered judgment as prayed for, and appeal was taken by the appellant to the county court of that county. Plaintiff again recovered in the county court, and appellant has brought the judgment in that court before us for review.

While this suit was originally brought in the justice court upon oral pleadings, on appeal to the county court the plaintiff filed written pleadings, setting out his cause of action. The appellant raises the objection to the plaintiff's pleading that it is subject to general demurrer in this: That such pleadings do not allege a demand for the freight and a refusal to deliver it, and, to entitle the plaintiff to a recovery, such demand and refusal must have been alleged.

We cannot agree that this contention is correct. In pleading in justice court and on trial de novo on appeal to the county court, oral pleadings are permissible in whole or in part. The fact that there are written pleadings in the county court does not necessarily show that there were no oral pleadings in addition thereto. If the record does not disclose that the written pleadings constituted the whole pleadings, it will be presumed that there were oral pleadings necessary to support the judgment. Fidelity Lumber Co. v. Bean (Tex. Civ. App.) 203 S. W. 782; Rector v. Orange Rice Mill Co., 100 Tex. 593, 102 S. W. 402; H. & T. C. R. Co. v. Southern Architectural Cement Co., 112 Tex. 139, 245 S. W. 644. And this is true even though the parties repleaded in the county court. Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S. W. 611; Threadgill v. Shaw (Tex. Civ. App.) 130 S. W. 707.

Appellant further alleges that the judgment of the trial court was erroneous in that no demand for the delivery of the car of freight was made of the carrier and no refusal of the demand was shown by the evidence.

It is true that there was no actual demand and refusal of same shown by the evidence. When the car of freight arrived at Memphis, it was spotted at the cotton platform, and late in the afternoon the plaintiff removed his livestock, consisting of horses, from the car and took them off. While he was gone the railroad agent locked the car and sealed it, and when the plaintiff returned he found it in that condition. It appears also that the agent phoned to a brother of the plaintiff to know who the shipper was, or if he knew the party. The reason the agent assigns for calling the brother was that he was in doubt as to whether or not it was permissible to ship an automobile in an emigrant car, and the railroad cashier, who did all of the revising, was gone for the day, and the agent wanted to satisfy himself as to who he was dealing with. Nothing was said in this phone conversation about holding the car for additional freight; the agent just said if the tariff had not been changed recently that there would be an additional charge covering the automobile, and he did not tell the brother that he would hold the car and not permit it to be unloaded until additional freight was paid. He told the brother if there was an additional charge that the collection would have to be made. It is not clear as to whether this conversation occurred before or after the agent had locked and sealed the car. The agent further testifies that it was six o'clock Saturday afternoon when he sealed the car, and, further:

"I sealed the car on the east side to prevent Mr. Brewer from unloading the automobile until I checked up the tariff. I sealed it to prevent the unloading of the automobile until I had a chance to check up the tariff, and I considered he would enter the car on the west side if he wanted to unload it, and I considered I would have a chance to see about that on Sunday morning or Monday. The car was not sealed on the west side. The automobile could not have been unloaded on the west side."

The evidence shows that when the car was shipped from Arlington, Tex., the plaintiff paid the freight on the full car and received a bill of lading. The agent at Arlington told him that he had a right to ship his automobile in the car and gave him a slip of paper, showing a reference to "Supplement No. 22 to Texas Lines Tariff," which authorized such shipment.

The plaintiff further testified:

"Yes; I had that slip with me when I unloaded my mules. I knew before I started that it was safe to put the car in that shipment. All I knew is that I did have a right to haul it and the agent at Arlington had told me that; he told...