Fort Worth & Denver City Ry. Co. v. Motley

• Decision Date: 16 September 1935
• Docket Number: No. 4453.,4453.
• Citation: 87 S.W.2d 551
• Parties: FORT WORTH & DENVER CITY RY. CO. v. MOTLEY.
• Court: Texas Court of Appeals

87 S.W.2d 551

FORT WORTH & DENVER CITY RY. CO. v. MOTLEY.

No. 4453.

Court of Civil Appeals of Texas. Amarillo.

September 16, 1935.

Rehearing Denied November 18, 1935.

Appeal from Hall County Court; J. H. Vallance, Judge.

Action by Garland Motley against the Fort Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thompson & Barwise, of Fort Worth, Morgan, Culton, Morgan & Britain, of Amarillo, and A. S. Moss, of Memphis, for appellant.

Ross Cox, of Hollis, Okl., and Allen C. Grundy and Hamilton & Fitzgerald, all of Memphis, for appellee.

HALL, Chief Justice.

The appellee, Motley, made a shipment of live stock from Estelline, Tex., to Fort Smith, Ark. This action was instituted July 6, 1933, to recover damages alleged to have been sustained by plaintiff on account of injuries to said live stock.

Following the formal allegations, it is alleged in the petition in substance that on the 11th day of April, 1932, plaintiff was the owner of eight mules, sixty horses and colts, and entered into a written agreement with the appellant for the transportation of said live stock from Estelline to Fort Smith; that he contracted with the appellant for the transportation of said horses and mules in two cars over its line of railway from Estelline to Fort Worth, and thence to destination over the St. Louis & S. F. Railway.

"4. That on said day and date, in compliance with the terms of said contract, said mules, horses and colts were loaded in said two cars and accepted for shipment by the agent of the railway company at its station in Estelline, and said cars were properly loaded in a prudent manner.

"5. That the plaintiff did not accompany said shipment, but the same left said town of Estelline on said date over the defendant's railway, in charge of the defendant, its agents and servants, and thence proceeded a distance of about fifteen miles to the town of Childress, in Childress County. That while said livestock were in Childress the servants of defendant, acting within the scope of their employment and engaged in the discharge of their duties, wrongfully and without the knowledge, approval or consent of the plaintiff, unloaded the said livestock from the said two cars as aforesaid, and reloaded them in three other cars, there being 18 head in one, 23 in another, and 27 in another; that said livestock proceeded on the remainder of the journey to their destination, a distance of several hundred miles, in said three cars.

"6. That such action so done at Childress, by the defendant, acting through its agents and servants, was in violation of the terms of its agreement, and was an act of gross negligence in the handling of such shipment of livestock, and such action would not have been taken by a person well informed and having due regard to the safe and prudent transportation of such livestock.

"7. That after such livestock left Childress in said three cars as aforesaid, and thereafter said cars were too lightly loaded and there was too much room in each and all of said cars, and said horses, mules and colts did not have sufficient support from each other, and as a consequence during the remainder of said journey were thrown violently against the floors, walls and doors of said cars and against each other, inflicting various serious injuries to said livestock, and causing very marked depreciation in their market value at Fort Smith, Arkansas, their destination.

"8. That the reasonable market value of said horses, mules and colts at said Fort Smith, Arkansas upon their arrival at their destination was $540.00 less than it would have been had they been transported in two cars as contracted by the defendant, and the said wrongful act of the defendant in adding a third car was the proximate cause of such damage to the plaintiff."

Paragraph 9 sets out an itemized statement showing the depreciation of the market value of the live stock as the result of the injuries alleged to have been sustained. In this list each animal is described, the injury is alleged, and the amount of damages to each such animal is then stated, aggregating $540. These items are all recoverable as general damages. It was not necessary to itemize them in the petition. Missouri, K. & T. Ry. Co. v. Rich, 51 Tex. Civ. App. 312, 112 S. W. 114; Ft. Worth & R. G. Ry. Co. v. Montgomery (Tex. Civ. App.) 141 S. W. 813; Lancaster v. Sayles (Tex. Civ. App.) 234 S. W. 227; St. Louis S. W. Ry. Co. v. Allen (Tex. Civ. App.) 117 S. W. 923.

In the tenth paragraph it is alleged that upon the arrival of the shipment at Fort Smith, plaintiff was compelled to pay freight charges on the shipment in an amount in excess of what he would have paid if the shipment had been continued to destination in the two cars as called for by the contract. The amount of such excess charge which he was compelled to pay was $126.32. This is special damages, and is properly pleaded.

The prayer is that he have judgment for the amount of his debt and damages in the sum of $666.35.

The case was submitted to a jury, and upon the findings judgment was entered for the full amount prayed for, together with interest from the 15th day of April, 1932, at 6 per cent.

In response to special issues the jury found: (1) That the animals were injured while in transit between Childress and Fort Smith; (2) that the act of defendant at Childress in changing the shipment from two cars to three cars was negligence; (3) that such negligence was the proximate cause of the injuries sustained; (4) that the reasonable market value of said animals at Fort Smith, at the time they arrived, was $1,227; (5) that but for the negligence of the defendant the reasonable market value of said animals at Fort Smith would have been $1,893.32.

By the sixth proposition the appellant contends that because plaintiff pleaded specific injuries to specific animals, the court should not have authorized the jury to determine the difference in market value of the animals in the aggregate. That portion of the petition which we have quoted above, considered with the formal parts, is sufficient to sustain the verdict and judgment. The fact that the pleading includes an itemized statement of the nature and amount of damages to each animal would not preclude the plaintiff from recovering the aggregate amount claimed under his allegation of general damages. Tokio Marine & Fire Ins. Co. v. Aldridge (Tex. Civ. App.) 21 S.W. (2d) 547. It is simply a statement of the evidence upon which plaintiff relied to sustain the amount of his recovery. It was not subject to a general demurrer for that reason. 33 Tex. Jur. 438, § 23. It therefore becomes the duty of this court to consider it merely as surplusage. Tandy v. Fowler (Tex. Civ. App.) 150 S. W. 481; Gulf, C. & S. F. Ry. Co. v. Pool, 70 Tex. 713, 8 S. W. 535; Gholson v. Wickwire Spencer Sales Corporation (Tex. Civ. App.) 66 S.W.(2d) 814.

As said in Panhandle & S. F. Ry. Co. v. Andrews (Tex. Civ. App.) 278 S. W. 478, 482: "In Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 32 S. Ct. 205, 56 L. Ed. 516, proof of delivery of interstate shipment to the initial carrier, and of failure to deliver the same to the consignee, raises a presumption of negligence so as to give rise to the liability imposed by the Carmack Amendment [49 USCA § 20, pars. 11, 12], and casts upon the carrier the burden of proving that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract; and the carrier cannot contract against liability for negligence in an interstate shipment. Chicago, R. I. & G. Ry. Co. v. Core (Tex. Civ. App.) 176 S. W. 778; Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 33 S. Ct. 397, 57 L. Ed. 690."

In Cudahy Packing Co. v. Atchison T. & S. F. Ry. Co., 193 Mo. App. 572, 187 S. W. 149, it is stated that under the common-law rule a carrier's liability is for all loss or destruction or injury to a shipment not occasioned by the act of God or public enemy; and the rule is declared in numerous cases to be that where the loss is not due to the excepted causes, proof of negligence is immaterial, and the carrier cannot escape liability by proving reasonable care and diligence. The effect of the Carmack Amendment, 49 USCA § 20 (11, 12), is to relieve the carrier of liability as an insurer of goods delivered to it for transportation; but a prima facie case is made by showing a delivery in good condition, and subsequent delivery, after transportation, in bad condition. Under the common-law rule, it is never necessary for the shipper to either allege or prove negligence on the part of the carrier in order to recover. Negligence is presumed when the prima facie case stated above is made to the shipper.

This being an interstate shipment, the rights of the parties are governed by the federal statutes and decisions. Hovey v. Tankersley (Tex. Civ. App.) 177 S. W. 153; Pacific Express Co. v. Ross (Tex. Civ. App.) 154 S. W. 340.

The Carmack Amendment (USCA, tit. 49, § 20, par. 11), provides, "That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law," and the words "existing law" are construed to mean existing federal law and not any state law. Adams Express Co. v. Croninger, 226 U. S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Chicago, St. P., M. & O. Ry. Co. v. Latta, 226 U. S. 519, 33 S. Ct. 155, 57 L. Ed. 328.

As said in Clay v. New York Central Ry. Co., 224 App. Div. 508, 231 N. Y. S. 424, 427: "This section 20 [49 USCA] applies to the rule of liability, and not to the elements of damage; it provides that the common-law liability, as it stood when the act was passed, could not be changed or limited by contract."

This language is used with reference to the proviso quoted above.

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