Gulf, C. & S. F. Ry. Co. v. Texas Packing Co.

• Decision Date: 18 November 1914
• Docket Number: (No. 5368.)
• Citation: 172 S.W. 195
• Parties: GULF, C. & S. F. RY. CO. v. TEXAS PACKING CO. et al.
• Court: Texas Court of Appeals

172 S.W. 195

GULF, C. & S. F. RY. CO. v. TEXAS PACKING CO. et al.

(No. 5368.)

Court of Civil Appeals of Texas. Austin.

November 18, 1914.

Rehearing Denied December 23, 1914.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by the Texas Packing Company against the Gulf, Colorado & Santa Fé Railway Company, in which defendant impleaded the Wabash Railroad Company, and sought to recover over against it. From a judgment for plaintiff against defendant named, and in favor of the Wabash Railroad Company as against defendant named, it appeals. Affirmed.

Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Wright, Wynn & Harris, of San Angelo, for appellee Wabash Ry. Co. W. O. Cox, of Temple, for appellee Texas Packing Co.

KEY, C. J.

Appellee, Texas Packing Company, brought this suit against appellant to recover damages for failure to properly ice, care for, and preserve five shipments of dressed poultry, originally shipped from Temple, Tex., to St. Louis, Mo., but, by subsequent agreement, carried on to Chicago, Ill. Appellant impleaded the Wabash Railroad Company, and sought to recover over against that carrier. There was a jury trial, which resulted in a verdict and judgment for the plaintiff against the appellant, and that the latter recover nothing as against the Wabash Railroad Company, and the case has been brought to this court for revision.

Counsel for appellant have filed a brief which presents many questions, none of which is novel or difficult, and some of which it is not entitled to have considered, because they complain of the action of the trial court in refusing to give certain requested instructions; but the record fails to show that appellant reserved any exceptions to the rulings referred to. The case was tried after the act of the Thirty-Third Legislature, which requires a complaining litigant to except to the action of the trial court in giving or refusing instructions, had gone into effect. The record shows that appellant reserved certain exceptions to the charge given to the jury, but does not show that any were reserved to the action of the trial court in refusing to give requested instructions. The statute referred to declares that a failure to except to the action of the trial court in giving or refusing instructions shall be regarded as a waiver of objections thereto. Crow v. Childress, 169 S. W. 927, and cases there cited.

The case is similar in many respects to M., K. & T. Ry....