International & G. N. Ry. Co. v. Rathblath

• Decision Date: 08 April 1914
• Docket Number: (No. 5330.)
• Citation: 167 S.W. 751
• Parties: INTERNATIONAL & G. N. RY. CO. et al. v. RATHBLATH et al.
• Court: Texas Court of Appeals

167 S.W. 751

INTERNATIONAL & G. N. RY. CO. et al. v. RATHBLATH et al.

(No. 5330.)

Court of Civil Appeals of Texas. Austin.

April 8, 1914.

Rehearing Denied June 3, 1914.

Appeal from Robertson County Court; J. L. Goodman, Judge.

Action by Abe Rathblath against the International & Great Northern Railway Company and another, in which Vacarro Bros. & Co. intervened. From a judgment for plaintiff and for the intervener, defendants appeal. Affirmed.

Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellants. J. Felton Lane, of Hearne, and W. W. Wilson, of Calvert, for appellee.

KEY, C. J.

Abe Rathblath, as plaintiff, brought this suit against the International & Great Northern Railway Company and the Texas & Pacific Railway Company seeking to recover damages in the sum of $652.50 for injuries to a car load of bananas shipped from New Orleans, La., to Calvert, Tex.

In the answers interposed by the defendants they averred, among other things, that the shipment, being interstate, was controlled by the act of Congress regulating interstate commerce, and especially by what is know as the Carmack Amendment thereto, and alleged that, by the terms of the bill of lading issued by one of the defendants and accepted by the plaintiff, it was stipulated that, if there was any loss or damage, the amount thereof was to be computed on the basis of the value of the property, the same being the bona fide invoice price thereof at the time and place of shipment, which value and invoice price was $202.95.

Thereafter Vacarro Bros. & Co. filed a plea of intervention, in which they sought to recover from the plaintiff, Abe Rathblath, the sum of $202.95, the value of the car of bananas, and prayed that, if the plaintiff recover against the defendants, the latter be required to pay $202.95 of said recovery to interveners in satisfaction of their claim against the plaintiff. The defendants interposed an exception and plea in abatement to the plea of intervention, which were overruled.

There was a jury trial, resulting in a verdict and judgment for the plaintiff against both of the defendants for $420.45, and for interveners against the plaintiff in the sum of $202.95, to be paid out of his recovery against the defendants, and both of the defendants have appealed.

The first assignment of error complains of the action of the trial court in overruling appellants' exception and plea in abatement to the plea of intervention filed by Vacarro Bros. & Co. It may be conceded that interveners had no interest in the cause of action asserted by the plaintiff against the defendants, and that, if the plaintiff had objected to the plea of intervention, it would have been reversible error not to sustain such objection. But, inasmuch as the record fails to indicate that the prosecution of the plea of intervention in any wise delayed the trial of the case, and as it clearly appears that no harm resulted therefrom to the defendants, we decline to reverse the case, even though the plea of intervention failed to show that the interveners were necessary or proper parties. If appellants are liable, it is wholly immaterial to them whether they make satisfaction to the plaintiff for the interveners, and therefore we see no reason why they should be heard to complain. In fact, it seems to us that the acquiescence of the plaintiff in the course pursued by the interveners is almost equivalent to an assignment by him of so much of the cause of action as would be necessary to discharge his indebtedness to the interveners. He filed no answer to the plea of intervention, and he testified as a witness that he bought the shipment of bananas in question from the interveners and owed them therefor the amount for which they sued, and he did not object to their plea of intervention. Such being the conditions as the case is presented in this court, and as the judgment protects appellants from more than one recovery, we see no sufficient reason why the case should be reversed on account of the rulings complained of in the...