Galveston, H. & S. A. Ry. Co. v. Botts

• Decision Date: 22 October 1902
• Citation: 70 S.W. 113
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. BOTTS.
• Court: Texas Court of Appeals

70 S.W. 113

GALVESTON, H. & S. A. RY. CO. et al. v.BOTTS.

Court of Civil Appeals of Texas.

October 22, 1902.

Appeal from district court, Gonzales county; Thos. McNeal, Special Judge.

Action by J. H. Botts against the Galveston, Harrisburg & San Antonio Railway Company and another.From a judgment for plaintiff, defendants appeal.Reversed.

This suit was brought by appellee against appellants to recover damages to cattle shipped from Gonzales to Ganahl, Tex.As this is the second appeal from a judgment in favor of appellee, and the nature of the case is described in our opinion on a former appeal (22 Tex. Civ. App. 609, 55 S. W. 514), it is unnecessary for us here to reiterate the nature of the case.

Harwood & Walsh, C. L. Carter, and Baker, Botts, Baker & Lovett, for appellants.Atkinson & Abernethy and T. H. Spooner, for appellee.

NEILL, J.

Upon the former appeal, in which the evidence did not materially differ from that in the record before us, we held that the evidence was sufficient to sustain appellee's contention that the shipment was made under a verbal contract with the Galveston, Harrisburg & San Antonio Railway Company, and that the shipment should be controlled by such contract.It is again contended that, if such contract was made, it was superseded by one in writing entered into between the parties at the time the shipment was made.It is unnecessary for us to pass upon this contention, for the undisputed evidence shows (and the court so instructed the jury) that no damages were sustained by appellee for depreciation in value of his cattle by reason of any delay in their shipment from Gonzales to San Antonio, and that they were delivered there to the San Antonio & Aransas Pass Railway Company in time for its first regular train out of said city to Ganahl, upon which they were transported to the latter point without delay, and that no damages were sustained, if any, until they reached there.Therefore, it being strictly a domestic shipment, the only liability for the damages which could attach to the Galveston, Harrisburg & San Antonio Railway Company would be by virtue of Rev. St. art. 331a; and it would be liable for such damages, if caused by its connecting carrier, whether such contract was verbal or written.

The court erred in allowing, over appellant's objection, the appellee, as a witness, to state what would have been the market value of the cattle at Ganahl if delivered there in as good condition as they were when turned over to the railway company, and then to state their market value there in the condition they were delivered to him by the company.As the court instructed the jury, "The...