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

• Decision Date: 04 October 1893
• Citation: 23 S.W. 298
• Parties: GALVESTON, H. & S. A. RY. CO. v. SILEGMAN et al.
• Court: Texas Court of Appeals

23 S.W. 298

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

Court of Civil Appeals of Texas.

October 4, 1893.

Appeal from Guadalupe county court; James Greenwood, Judge.

Action by E. Silegman and her husband against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Fly & McNeal, for appellant. Ireland, Burges & Dibrell, for appellees.

NEILL, J.

This appeal is from a judgment of the county court of Gaudalupe county in favor of appellee and her husband against appellant for $600 for alleged injuries to 68 head of beef cattle shipped over appellant's road from Marion to La Grange, Tex. The appellant assigns as error the failure of the court to sustain its general demurrer to plaintiffs' original petition, for the reason that it showed upon its face that E. Silegman was a married woman, and that her husband was the only necessary party to the suit. It is true that the husband can sue in his own name for damages sustained to his wife's separate property, and the wife is not a necessary party; yet a suit by her, when joined by her husband, is not such a defect in pleading as can be reached by general demurrer.

The cattle were shipped under a written contract between the parties, which is in the nature of a bill of lading, and is in itself a full and complete agreement between them as to the shipment. Upon the trial the plaintiffs were permitted to prove, over defendant's objections, that its agent, prior to the time of shipment, agreed to furnish plaintiffs "bedded cars" in which to ship the animals, and make close connection at La Grange with the Missouri, Kansas & Texas Railway. The action of the court in permitting the introduction of such testimony is assigned as error, upon the ground that there was a written contract, and all parol antecedent and contemporaneous agreements were merged in it. Except in the recital or acknowledgment of the receipt of the goods and of their quantity and condition when received, bills of lading are strictly written contracts between the parties, and come within the general rule which prohibits the introduction of parol evidence to contradict or vary such contracts. Not only is such evidence inadmissible to change or vary in any particular the express terms of the contract, but in these instruments, as in all other written contracts, there may be implied obligations as to which the contract may be entirely silent, but which result by necessary implication or by construction from the very nature of the contract itself; and such implied obligations can no more be varied by verbal evidence than the express written stipulations of the parties. Hutch. Carr. § 126. The appellant, as a common carrier, was bound to furnish suitable and safe cars for transporting appellees' cattle. This duty devolved upon it as a common carrier, and was implied from the contract itself; and, if bedded cars were the only suitable and safe kind, it should have been proved under the allegation that appellant failed to furnish them; and appellees would not have been prevented from making such proof by the stipulation in the written contract that they accepted the cars, etc., for this would be an attempt to limit its duty as a common carrier. It was also the duty of appellant to transport the cattle to La Grange within a reasonable time, and if it could, within a reasonable time after the cattle were received, have made connection with the train of the Missouri, Kansas & Texas Railway train, it was its duty to do so, for appellant knew that the cattle were destined to East St. Louis via said railroad, and that a failure to make connection with its train en route to said place might reasonably result in damages to the animals. But this duty arose by implication from the written contract of shipment, and not from a previous parol agreement between appellees and appellant's agent. The evidence complained of was not introduced for the purpose of showing that, under the contract, bedded cars were the only safe and suitable kind for the shipment of such live stock, nor for the purpose of proving that, if the journey had been made with reasonable dispatch, connection, as a consequence, would have been made with the Missouri, Kansas & Texas train, but to show a prior parol agreement between the parties as to the subject-matter of the written contract. The admission of the testimony complained of was an infraction of the rule quoted, and should not have been permitted.

The admission of the testimony of a witness to the effect that a party had told him some time before the shipment he would give $17 per head for the cattle if he could get them was error, as such testimony was not evidence of value, nor admissible for any purpose.

It is urged as an objection to the charge of the court that it failed to charge the law applicable to the facts, or inform the jury of the rule as to the measure of damages in the case. In the fifth paragraph the jury were instructed "that a common carrier of live stock for pay must complete the journey within a reasonable time, and if it does not do so, and the stock is injured by the delay, the carrier will be liable to the owner for all damage caused by such delay." In the next paragraph the principle enunciated was applied to the case. This part of the charge, if given in a case to which it was applicable, would be correct. In this one no delay was alleged, and none proven. It was alleged that appellant's train failed to arrive at La Grange until about 20 minutes after the Missouri, Kansas &...