International & G. N. R. Co. v. Bingham

• Decision Date: 04 November 1905
• Citation: 89 S.W. 1113
• Parties: INTERNATIONAL & G. N. R. CO. v. BINGHAM et al.
• Court: Texas Court of Appeals

89 S.W. 1113

INTERNATIONAL & G. N. R. CO. v. BINGHAM et al.

Court of Civil Appeals of Texas.

November 4, 1905.

Appeal from Harris County Court; Blake Dupree, Judge.

Action by Bettie Bingham against the International & Great Northern Railroad Company and another. From a judgment in favor of plaintiff against the International & Great Northern Railroad Company alone, it appeals. Reversed.

Chas. C. McRae, for appellant. Hutcheson, Campbell & Hutcheson, for appellee Bingham. Baker, Botts, Parker & Garwood, for appellee Houston & T. C. R. Co.

PLEASANTS, J.

This suit was brought by appellee Bingham against the appellant and the Houston & Texas Central Railway Company in a justice court of Harris county upon the following account and statement of claim: "International & Great Northern Railroad Company and The Houston and Texas Central R. R. Co. to Mrs. Bettie Bingham, Dr. Nov. 18th, 1902. To eight barrels of syrup, delivered to the I. & G. N. R. R., at Bingham Switch, in Brazoria Co., for delivery in the city of Houston, over the lines of the I. & G. N. R. R. and the H. & T. C. R. R., value of $15 per barrel. $120. This syrup was consigned to McCullough Bros., of Houston, and shipped in a car with 50 other barrels; 58 shipped and delivered to defendant in all, but only 50 received from the defendants in Houston. Plaintiff sues both defendants for the value of 8 barrels of syrup lost in transit." Both defendants answered by general denial and special pleas. The International & Great Northern Railroad Company averred, in substance, that it received a shipment of syrup from appellee at Bingham Switch on the date alleged for transportation and delivery to McCullough Bros. at Houston, and that after the shipment reached Houston it was, at the request of the consignees, turned over to the Houston & Texas Central Railway Company for transportation to the warehouse of Henke & Pillot, to whom it had been sold by McCullough Bros.; that this defendant had no contract with plaintiff to deliver the shipment at said warehouse, and that it fully complied with its contract to transport same to Houston and deliver it to the consignees, McCullough Bros., and that it delivered all of said shipment of syrup received by it to its codefendant as aforesaid. The Houston & Texas Central Railway Company specially pleaded that it contracted with McCullough Bros. to transport the car of syrup in controversy from the transfer track of the International & Great Northern Railroad Company, in Houston, Tex., to the Henke & Pillot warehouse, and that in compliance with its said contract it did transport and deliver said car; that it did not receive payment for said services from plaintiff, and made no contract with her in regard to said shipment; and that, if the shipment suffered any loss, it occurred before it was accepted by this defendant, and while it was in the hands of its codefendant. The trial in the justice court resulted in a judgment in favor of plaintiff against both defendants for $92. From this judgment defendants appealed to the county court, and upon a trial de novo therein plaintiff recovered judgment against the International & Great Northern Railroad Company for $120, and judgment was rendered in favor of the Houston & Texas Central Railway Company that plaintiff take nothing by her suit against it, and that it recover its costs.

Appellant's first assignment of error complains of the ruling of the trial court in refusing to allow it three peremptory challenges in selecting the jury that tried the cause. Under our statute, each party to a civil suit in the county court is allowed three peremptory challenges of jurors drawn to try the case. Rev. St. 1895, art. 3213. It is well settled under our decisions that, where the interests of codefendants are antagonistic, each of such defendants is a party to the suit in the sense in which that term is used in the statute, and is entitled to the number of peremptory challenges named in the statute. It is true that in most of the cases in which this rule has been announced one defendant pleaded over against the other, but the rule has not been restricted in its application to cases of this character, and the general principle is established that when, under the pleadings, the jury are required to determine material issues between the defendants, each of the defendants is entitled to the statutory number of challenges. While it is true that in the present case both defendants denied generally that the plaintiff had lost any of her shipment of syrup, and to that extent their defense was common, each contended that, if plaintiff sustained any loss, the other defendant was alone responsible therefor. From this it is apparent that, if plaintiff's loss should be established by the evidence, the...