Ft. Worth & D. C. Ry. Co. v. Greathouse

• Decision Date: 03 November 1891
• Citation: 17 S.W. 834
• Parties: FT. WORTH & D. C. RY. CO. v. GREATHOUSE.
• Court: Texas Supreme Court

17 S.W. 834

FT. WORTH & D. C. RY. CO. v. GREATHOUSE.

Supreme Court of Texas.

November 3, 1891.

Commissioners' decision. Section B. Appeal from district court, Wise county; J. W. PATTERSON, Judge.

Action by G. R. Greathouse against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by FISHER, J.:

This suit is by appellee against appellant to recover damages sustained growing out of a violation of shipment of cattle from Harrold, Tex., to Chicago, Ill. The petition, in substance, alleges that on the 3d day of September, 1887, plaintiff delivered to defendant at Harrold, for shipment to Chicago, 149 head of beef cattle; that defendant received the cattle, and agreed by written contract with plaintiff to transport the cattle to Chicago without delay. They were immediately loaded upon the cars, and were in good condition, fat and suitable for beef, and were in as good condition as any cattle then being shipped to the Chicago market; and were shipped for the purpose of being sold in that market for beef, and the purpose for which they were being shipped was well known to the agent of defendant. The written contract for the shipment of the cattle is attached to and made a part of the petition. It was, among other things, provided in said contract that, as a condition precedent to plaintiff's right to recover for any damages for loss or injury to his said stock during the transportation thereof, or previous to loading thereof for shipment, he would give notice in writing, verified by affidavit, of his claim therefor, to some general officer of defendant, or its nearest station agent, before said stock was removed from the point of shipment, or from the place of destination, and before such stock was mingled with other stock, within one day after the delivery of such stock at its point of destination, and before the same shall have been removed, slaughtered, or mingled with other stock, to the end that such claim might be fully and fairly investigated, and that a failure to comply with that provision of the contract should be a complete bar to any recovery of any and all such claims. It is further alleged in plaintiff's petition that, at the same time and place that plaintiff shipped his cattle, Rush & Hutchinson, a firm composed of William Rush and J. W. Hutchinson, shipped 145 head of beef cattle; I. L. Hutchinson, 33 head; G. W. Gill and W. L. Rush, who were partners, shipped 45 head. All of said cattle shipped by said persons were received by defendant, in the same manner and by the same agent of defendant, and were loaded on the same train of cars on which the cattle of plaintiff were loaded, and were to be carried to Chicago. That said persons had a written contract with defendant for carrying their cattle, the same, in substance, as the one entered into by plaintiff, and which is made a part of his petition; that all of said cattle were shipped to Chicago to be marketed as beef cattle; that said cattle were shipped as aforesaid, on the date aforesaid, and were transported over defendant's line of road to Henrietta, Tex., where they were transferred to the Missouri Pacific Railway; that while being transported over the Missouri Pacific Railway, through the negligence of the Missouri Pacific Railway Company, and by reason of the unsafe condition of said railroad, and by reason of said railroad being out of repair, said cattle were delayed on the road at a point between Henrietta and Denison, Tex., for a period of 20 hours, without food or water; that at a point between Gainesville, on said line, and Denison, by reason of said railroad track being out of repair, said train of cars ran off the track, and one of plaintiff's cattle was killed, worth $25; that all of said cattle were bruised, injured, and greatly damaged; that two belonging to Rush & Hutchinson were injured so that they were worth $15 less than they were worth before said injury; that, by reason of said delays and other delays, the cattle had to have an extra feed, which cost plaintiff $15, Rush & Hutchinson $15, Gill $9, and I. L. Hutchinson $8; that by reason of the cattle being bruised and injured, and by reason of the delay on the road, the cattle lost in weight 40 pounds per head, thereby damaging plaintiff in the sum of $150, Rush & Hutchinson $144, Gill & Rush $30.40, and I. L. Hutchinson $36.40; that when the cattle arrived in Chicago the market had declined 15 cents per hundred pounds below what it was when the cattle should have reached there, and thereby plaintiff was damaged in the sum of $200, Rush & Hutchinson $166.47, Gill $129, and I. L. Hutchinson $105.04; that the claims of Rush & Hutchinson, G. W. Gill, and I. L. Hutchinson had been assigned to plaintiff, and defendant had refused to pay plaintiff, to his damage $1,200. The defendant answered by general demurrer and general denial. The jury returned a verdict in plaintiff's favor for $900, for which amount judgment was rendered against appellant. The evidence offered in behalf of plaintiff by several witnesses proved the allegations of his petition in reference to the shipment of the cattle from Harrold to Chicago, and when and how they were injured, and that the injury and delay occurred through the negligence of the Missouri Pacific Railway Company; that the effect of the wreck by which the cattle were injured was to shake them up, and skin and bruise them, and that they were confined in the cars about 20 hours longer than they would have been if no wreck had occurred, and thus they were delayed in their arrival at Chicago 20 hours. The evidence shows the character and kind of cattle shipped, and the purpose for which they were shipped, being for sale in the Chicago market; and it further is satisfactory in showing that the agent of appellant at Harrold knew of such purpose when the contract was made. Several witnesses testified as to the number of cattle shipped, and the weight of the cattle in Chicago, and what effect the injuries and delay would have upon the weights of the cattle, and the condition of the Chicago market when the cattle ought to have arrived, and the state of the market when they did arrive. In fact, the evidence substantially establishes the items of damages as alleged in the petition. The proof is further satisfactory on the point that appellee was the owner of the claims of damages of the other consignors who shipped with him. No evidence appears showing that plaintiff gave notice to any officer or station agent of appellant concerning the extent of the injuries and damages to the cattle. No evidence on any branch of the case was introduced by appellant.

J. M. O'Neill, for appellant. Carswell, Fuller & Terrell, for appellee.

FISHER, J., (after stating the facts.)

1. Appellant on the trial of the case objected to the fourth and fifth interrogatories propounded by plaintiff to witnesses Meyers and Davidson, and the answers thereto, on the ground that they were leading. Without deciding whether the interrogatories are leading, we think no injury resulted to appellant by their admission in evidence; because the facts of the wreck and the delay inquired about, and the number of cattle in the train at the time, and the results of the wreck as affecting the cattle, further inquired about in the interrogatories, are all facts testified to by other witnesses in the case, and concerning which there is no conflict in the evidence. The answers brought out by these interrogatories are simply cumulative of the undisputed evidence in the record.

2. Witness Rush, in testifying as to the weights of the cattle of Rush & Hutchinson in Chicago, was unable to state from recollection the weights, and was, over the objection of appellant, permitted to use a memorandum in order to refresh his memory as to the weights. It is not necessary for us to pass upon the admissibility of this evidence, for no harm resulted from its admission, as the weights of the cattle shipped by Rush & Hutchinson in Chicago are fully proven by the testimony of G. R. Greathouse, which is not...