Missouri, K. & T. Ry. Co. of Texas v. Texas Packing Co.

• Decision Date: 25 March 1914
• Docket Number: (No. 5323.)
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. TEXAS PACKING CO.

167 S.W. 337

MISSOURI, K. & T. RY. CO. OF TEXAS v. TEXAS PACKING CO.

(No. 5323.)

Court of Civil Appeals of Texas. Austin.

March 25, 1914.

Rehearing Denied June 3, 1914.

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by the Texas Packing Company against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

W. W. Naman and Spell & Sanford, all of Waco, for appellant. Sleeper, Boynton & Kendall, of Waco, for appellee.

KEY, C. J.

Appellee sued appellant and recovered a verdict and judgment for $2,764.66, with interest thereon, as damages for failure on appellant's part to properly ice a car load shipment of poultry from Waco, Tex., to Chicago, Ill., and the case is now before this court for review.

The first assignment of error complains of the action of the trial court in not giving a requested instruction directing the jury to return a verdict for the defendant; and appellant presents several other assignments under which it is contended that the verdict of the jury is without support in the testimony. The contract of shipment, in so far as applicable to the facts, stipulated that, in case of loss or damage for which the carrier was liable, the amount thereof was to be computed on a basis of the bona fide invoice price at the time and place of shipment, and it was alleged by both parties and shown by uncontroverted testimony that the amount referred to was $5,290.80. The entire shipment consisted of dressed turkeys, and comprised three classes, being based upon value at Waco, Tex. There were 25,898 pounds worth 19½ cents per pound, making $5,050.11; 1,031 pounds worth 15 cents per pound, making $154.65; and 717 pounds worth 12 cents per pound, making $86.04. The proof shows that, when the shipment reached its destination, 10,814 pounds thereof had so deteriorated as to render it worthless, and that, after its condemnation by the official inspector, it was delivered to the proper authorities and carried away to be destroyed; and it is for the loss referred to and injury to the balance that appellee recovered the judgment complained of.

It is insisted on behalf of appellant that the judgment should be reversed because the testimony does not show how much of each class of the shipment was embraced in the 10,814 pounds that was damaged and lost. There is no merit in that contention. Over 90 per cent. of the shipment was of the first class or highest grade; and, if it be conceded that all that belonged to the other two grades...