Kansas City, M. & O. Ry. Co. of Texas v. James

• Court: Texas Court of Appeals
• Writing for the Court: Hendricks
• Citation: Kansas City, M. & O. Ry. Co. of Texas v. James, 190 S.W. 1136 (Tex. App. 1916)
• Decision Date: 20 December 1916
• Docket Number: (No. 1082.)
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. JAMES et al.

Page 1136

190 S.W. 1136

KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. JAMES et al.

(No. 1082.)

Court of Civil Appeals of Texas. Amarillo.

December 20, 1916.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by A. M. James and another against the Kansas City, Mexico & Orient Railway Company of Texas and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Thompson & Barwise, of Ft. Worth, H. S. Garrett, of San Angelo, and J. Y. Powell, of Houston, for appellants. Tatum & Tatum, of Dalhart, for appellees.

HENDRICKS, J.

The appellees sued the Kansas City, Mexico & Orient Railway Company of Texas and the Ft. Worth & Denver City Railway Company for damages alleged to have arisen on account of a shipment of 850 head of cattle, made on April 21, 1913, from Ft. Stockton, Tex., by way of Chillicothe, to Dalhart, Tex.

The original petition of the plaintiffs, as well as the amended original petition, contain general allegations of negligence addressed to the failure of the defendant railway companies to exercise ordinary care in the transportation of the cattle, and the failure to transport the same with reasonable dispatch. Said petitions, however, contain specific allegations of negligence, set out in different paragraphs, alleging delay, rough handling of the cattle by jerking the cars in which they were shipped, also permitting the same to stand on the cars at a station, or stations, an unreasonable length of time, all of which produced the death of some of the cattle and a damage of $1,251 to the remainder.

It is the settled rule in regard to the construction of pleadings in negligence cases that, where the petition alleges generally that the injury was the result of negligence, and then specifically set up the acts of negligence relied upon, the evidence will be confined to the specific allegations of negligence and the general allegations will be controlled by the specific acts averred. Railway Co. v. De Ham, 93 Tex. 74-78, 53 S. W. 375; Railway Co. v. Younger, 10 Tex. Civ. App. 141, 145, 29 S. W. 948; Railway Co. v. Hennessey, 75 Tex. 155, 158, 12 S. W. 608.

During the trial of the case, and after the evidence had nearly closed, the plaintiffs requested, and the trial court granted, permission to file a trial amendment, in which it was alleged:

That the plaintiffs' cattle "were upon the defendants' said cars for more than 43 hours from the time they were loaded at Ft. Stockton, Tex., before they were unloaded for feed, water, and rest, and defendants failed and refused to permit the plaintiffs to unload, feed, water, and rest said cattle for more than 43 hours from the time they were loaded, * * * although demanded and requested by the plaintiffs to do so."

It was also alleged that defendants failed to provide sufficient facilities to plaintiffs for the purpose of feeding, watering, and resting the cattle.

The first amended original petition of the plaintiffs was filed in the cause on the 15th day of January, 1915, and the cause was called for trial on March 13, 1916.

The defendants objected to the filing of the trial amendment, for the reasons that the allegations of negligence contained therein had never before been set up in plaintiffs' pleading, to their surprise, and without affording defendants opportunity to procure testimony to rebut the allegations. The objections were overruled by the trial court, and plaintiffs were permitted to file the amendment.

The defendants then presented to the court a motion, properly sworn to, to withdraw their announcement of ready in the cause, and continue the same for the term, or postpone it to a subsequent date, for the purpose of procuring testimony and evidence to rebut the plaintiffs' trial amendment. In said motion it was asserted that, if allowed a reasonable time in which to procure the evidence, the defendants expected to prove that the cattle did not remain on board the cars for the length of time alleged by plaintiffs, nor that the plaintiffs made any request of defendants, or either of them, to have the cattle unloaded, fed, watered, and rested. It was stated in the motion:

"That defendants had and were possessed of ample facilities to unload, feed, water, and rest said cattle at reasonable intervals, and would have furnished same to plaintiffs if requested, or informed of conditions rendering same necessary or advisable."

The defendants in their answers had pleaded the usual cattle shipping contracts, by the terms of which the plaintiffs had agreed to feed, water, and care for the cattle, unload and reload the same during the transportation.

After the filing of the trial amendment the defendants also pleaded a special exception, interposing the two-year statute of limitation arising upon the record, which was likewise overruled by the trial court.

We think the trial amendment, though alleging additional and different grounds of negligence, contributing, in part, to the cause of action, such negligence shown to be a part of the same transaction, and effecting the same injury alleged in the first amended petition, did not set up a new cause of action. Railway Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282, writ of error denied, Cotton Co. v. Stewart, 17 Tex. Civ. App. 59, 42 S. W. 241, writ of error denied by Supreme Court, 93 Tex. 695, 42 S. W. 241; Cotter v. Parks, 80 Tex. 539, 16 S. W. 307; Massey v. Blake, 3 Tex. Civ. App. 57, 21 S. W. 782; T. C. Ry. Co. v. Frazier, 34 S. W. 665; Landa v. O'Bert, 78 Tex. 46, 14 S. W. 297; Texas & Pacific Railway Co. v. Buckalew, 34 S. W. 165.

We think though the trial court should have sustained the defendants' motion and either continued the cause for the term or postponed it for a future date, affording reasonable time to procure evidence to rebut the new allegations of negligence.

It is clear, analyzing the specific acts of negligence charged in the amended petition, to which the proof would had to have been confined in sustaining the cause of action asserted therein, that the allegations of negligence set up on the trial amendment were entirely new grounds of negligence contributing to the injury and the recovery.

It is true that to the time of the trial amendment, there had been testimony on the question of the cattle having been injured on account of the long detention upon the cars and some testimony by one of the plaintiffs that at certain points during the transportation a request was made of the defendants that the cattle be unloaded for feed, water, and rest; and the record does not disclose any objection to this testimony, except that after the case had closed upon the evidence a special charge was requested and refused by the trial court that the character of testimony mentioned be excluded from the jury. We mention the fact of the deliverance of this character of testimony before the time of the filing of the trial amendment for the reason that it may be suggested and argued that such testimony was in the record, and the defendants could not have been surprised on that account. Such testimony, however, can be appropriately accounted for without any objection upon the part of the defendants on account of this condition. As stated, defendants had pleaded that the plaintiffs had assumed, as caretakers, the charge of the cattle during transportation, on account of special contracts pleaded by them. Such testimony was pertinent on the controverted issue between plaintiffs and defendants, whether the former were guilty of negligence in failing to comply with the contract to care for the cattle in course of transportation.

The plaintiffs not having pleaded (to the time of the trial amendment) as grounds of negligence that the cattle had been on the cars an unreasonable length of time without feed, water, and rest, nor that defendants had failed to furnish facilities, the latter had the right to regard that such testimony in the record up to the time of the filing of the trial amendment was relevant only to the contributory negligence of the plaintiff, and not as affecting any right of recovery by the plaintiffs. When defendants pleaded that plaintiffs, under their contracts, had special charge of the cattle in transportation, the burden, after the introduction in evidence of said contracts, was upon the plaintiffs to exonerate themselves for any negligence affecting the injury to the cattle. Texas & Pacific Railway Co. v. Arnold, 16 Tex. Civ. App. 76, 77, 40 S. W. 829; Railway Co. v. Vaughan, 41 S. W. 415; opinion on motion for rehearing in the case of Ft. Worth & Denver City Railway Co. v. Allen, 189 S. W. 765 (with numerous authorities cited therein), decided by this court November 29, 1916. If they were negligent in that respect, necessarily defendants had the right to reduce the...