Houston & T. C. R. R. Co. v. Burke

• Decision Date: 21 June 1881
• Docket Number: Case No. 4351.
• Citation: 55 Tex. 323
• Parties: THE HOUSTON & T. C. R. R. CO. v. VICTORIA C. BURKE.
• Court: Texas Supreme Court

55 Tex. 323

THE HOUSTON & T. C. R. R. CO.

v.VICTORIA C. BURKE.

Case No. 4351.

Supreme Court of Texas.

Jun. 21, 1881.

APPEAL from Travis. Tried below before the Hon. John W. Robertson.

The opinion sufficiently states the case.

Walton, Green & Hill and George Goldthwaite, for appellant.

John B. Rector, for appellee.

I. The citation states the nature of plaintiff's demand. R. S., art. 1215; Wade on Notice, § 1156; Hughes v. Osborne, 42 Ind., 450.

II. The allegations in plaintiff's petition are sufficient to hold defendant to answer by service on Robert S. Collins. The petition says, “That the defendant, the said Houston & Texas Central Railway Company, is a body corporate, created by the legislature of the state of Texas, entitled an act, etc., and that the principal office of said company is in the city of Houston, Harris county, Texas, and that said company has an office for the transaction of its business as a common carrier in the city of Austin, Travis county, Texas, at which place the agent of said company is Robert S. Collins.” R. S., art. 1223; Wade on Notice, §§ 1310, 1311; M. K. & T. R. R. v. Crowe, 9 Kan., 496;State v. Han. & St. Jo. R. R., 51 Mo., 532.

III. The agency of Robert S. Collins was judicially ascertained. There was a judgment by default in the case.

IV. Defendant was not entitled to a copy of plaintiff's petition accompanying citation. R. S., arts. 1216, 1219, 1220, 1223.

V. The defendant was guilty of such negligence in failing to answer plaintiff's petition as justified the court in refusing to set aside the judgment by default. Foster v. Martin, 20 Tex., 119;Watson v. Newsham, 17 Tex., 437;Freeman v. Neyland, 23 Tex., 529;Ables v. Donley, 8 Tex., 336;Power v. Gillespie, 27 Tex., 370;Houston v. Jennings, 12 Tex., 487;Clute v. Ewing, 21 Tex., 677; Sayles' Treatise, § 841.

VI. The defendant in its application to set aside the judgment by default failed to show that it had a good defense to plaintiff's cause of action. Foster v. Martin, 20 Tex., 119;Cook v. Phillips, 18 Tex., 31;Wright v. Thomas, 6 Tex., 421; Cochran v. Middleton, 13 Tex., 275; Aldridge v. Mardoff, 32 Tex., 297; Scrivner v. Malone, 30 Tex., 773. As to exemptions in bill of lading from liability, how far binding, see R. S., art. 278; Lawson on Carriers, §§ 29, 92, 95; Galt v. Adams Ex. Co., reported in Lawson on Carriers, 426, 427, etc.; the N. Y. Cent. & Hudson River R. R. Co. v. Trauloff, reported in Thomson on Carriers of Passengers, 502, 503, etc.; Hollister v. Nowlen, 19 Wend., 234; S. C., Thompson on Car., 489; Levoise v. Gale, 17 La. Ann., 305; 8 Cent. Law Jour., 291, 292, 293; Boskowitz v. Adams Ex. Co., 9 Cent. Law Jour., 389.

VII. An application to set aside a judgment by default and permit the defendant to answer should show that there is a good defense, and should also show good cause or excuse for not pleading it at the proper time.

VIII. The bill of lading on which defendant rests its showing of a meritorious defense was not a contract between the shipper and carrier, and its exemptions from liability of the latter cannot bind the shipper. Lawson on Contracts of Carriers, §§ 114, 105, 219, 95, pp. 97, 29, note 32; Galt v. Adams Express Co., reported in Lawson's Carriers, 427; 2 Greenleaf on Evidence, § 216; Angell on Carriers, § 247; Redfield American Railway Cases, 2d ed., 268, 269; Levoise v. Gale, 17 La. Ann., 305; 5 Cent. Law Jour., 134, 135; 8 Cent. Law Jour., 291, 292.

IX. The bill of lading on which defendant rests its showing of a meritorious defense is contrary to the statutes and public policy of the state of Texas, and invalid. R. S., art. 278; Houston & Texas Central Railroad v. John A. Peel, decided by Court of Appeals at Galveston term, 1881; Heaton & Bro. v. Morgan's Louisiana & Texas Railroad and Steamship Co., vol. 4, No. 24, Texas Law Journal; Crosby v. Houston, 1 Tex., 203; Roher on Inter-State Law, 49; Anderson v. Pond, 13 Pet., 65; Story on Conflict of Laws, § 304 a.

X. The motion of appellant, with affidavits thereto attached, asking to set aside the judgment by default, did not attempt to meet the charge of the petition that the goods were lost through the carelessness of defendant. The petition in both counts charges that appellee's goods and property were burned through the carelessness of defendant while in its custody as a common carrier. In defendant's motion to set aside the judgment by default, there is no attempt to show that the goods were not lost through the carelessness of defendant. 2 Redfield's American Railway Cases, 268; Id., 2d ed., 263, 264; Lawson on Carriers, § 133, note 33; §§ 132, 28, 29; Galt v. Adams Express Co., 427, reported by Lawson on Carriers; 2 Redfield on the Law of Railways, 5th ed., § 178, divisions 5, 11, 12, thereof; Bank of Kentucky v. Adams Express Co., 4 Cent. Law Jour., 35; Kerby et al. v. Adams Express Co., reported in 3 Cent. Law Jour., 435; Boskowitz et al. v. Adams Express Co., reported in 8 Cent. Law Jour., 389; 8 Cent. Law Jour., 291.

XI. The court did not err in permitting plaintiff to refer to her bill of particulars to refresh her memory while she was answering questions propounded by her counsel. 2 Phillips on Evidence, 915, 926 (10th English ed.); Flato v. Brod & Hemmi, 37 Tex., 735; 1 Greenl. on Ev., §§ 436-438; 1 Starkie, 184.

XII. The admission of improper evidence, cumulative in its nature, will not authorize a reversal of the judgment, when there was sufficient competent evidence before the jury to warrant the verdict. Pridgen v. Hill, 12 Tex., 378;Mercer v. Hall, 2 Tex., 287;Beaty v. Whitaker, 23 Tex., 529;Johnson v. Brown, 51 Tex., 65.

GOULD, ASSOCIATE JUSTICE.

This suit was instituted by Mrs. V. C. Burke, September 13, 1880, to recover of the railway company damages for the loss and destruction of certain paintings, jewelry, clothing, furniture and household effects, shipped by her at New Orleans, La., to be carried to Austin, Texas, under a contract made at New Orleans with a connecting line and agent of the appellant railway company, by the terms of which the latter agreed to carry said property from Houston, Harris county, to Austin. The property shipped was stated in detail, with values aggregating as follows: Paintings, $8,510; jewelry, $2,320; clothing, $6,081; furniture, household effects, etc., $11,492.50. Total, $28,403.50.

The petition stated “that said company has an office for the transaction of its business as a common carrier in the city of Austin, Travis county, Texas, at which place the agent of said company is Robert S. Collins.” On this petition citation issued and was served September 20th, on Robert S. Collins, by delivery of a copy thereof, the citation stating the nature of the demand set out in plaintiff's petition to be “a prayer for judgment in favor of said plaintiff against said defendant for $28,403.50 damages, on account of the loss by defendant of the goods and property of said plaintiff, as will more fully appear by plaintiff's original petition on file.” On October 8th there was a judgment by default and a writ of inquiry awarded. Two applications to set aside the default were made and overruled during the term, the defendant being, however, allowed to introduce evidence as to the quantity and value of property shipped, as though no default had been taken; the result of the trial being a verdict and judgment for plaintiff for $20,500.

The questions presented in this court are numerous, but may be classed under three heads: 1st. The sufficiency of the citation and service. 2d. The sufficiency of the showings to set aside the default. 3d. Various rulings of the court on questions of evidence and practice, and in its charge, alleged to be erroneous.

The Revised Statutes require the citation to state “the nature of the plaintiff's demand,” and provide, where the citation is served within the county in which the suit is pending, that it may be executed by delivering to the defendant a true copy of the citation; but where served without the county, directs that “the officer shall also deliver to the defendants, and each of them, in person, the certified copy of the petition accompanying the citation.” R. S., arts. 1215, 1219, 1220.

It is objected that the citation does not state the nature of plaintiff's demand. We do not think the statute designs the citation to supply the place of the petition, or that it should state the nature of the demand otherwise than in a general way, avoiding any attempt at details, other than those prescribed. It should state “the date of the filing of plaintiff's petition, the file-number of the suit, the names of the parties and the nature of the plaintiff's demand;” the last to be stated sufficiently to notify defendant of the character of the demand against him. It would be unfortunate if citations could be objected to like a petition; and anything approaching strictness in requiring the nature of the demand to be set out with fullness and accuracy of detail, would lead to danger of such a result. The statement in the citation we are considering is meager, but we cannot say that it was insufficient.

In suits against incorporated companies, the statute says that the citation “may be served … upon the local agent representing such company or association in the county in which suit is brought.” R. S., art. 1223. In our opinion, it sufficiently appears from the averments of the petition that Robert S. Collins was the local agent of the company in Travis county, although the petition does not follow the language of the statute.

The further point is raised that there was no judicial ascertainment of the agency of said Collins. The answer is, that there is no practice prevailing in this state requiring anything further to appear to show the agency than does in this case.

The final objection to the service, that “defendant was entitled to a copy of plaintiff's petition accompanying the citation,” is answered by the fact that this service was had in the county...