Panhandle & S. F. Ry. Co. v. Reynolds
| Decision Date | 03 December 1930 |
| Docket Number | No. 3500.,3500. |
| Citation | 33 S.W.2d 249 |
| Parties | PANHANDLE & S. F. RY. CO. v. REYNOLDS. |
| Court | Texas Court of Appeals |
Appeal from Lubbock County Court; Robert H. Bean, Judge.
Action by J. G. Reynolds against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Wilson, Randal & Kilpatrick, of Lubbock, and Madden, Adkins, Pipkin & Keffer, of Amarillo, for appellant.
This is a cattle shipping case. Reynolds alleged that he shipped a car of thirty cattle from Sulphur Springs, Tex., to Roundup, Tex., over the line of the appellant Railway Company and its connecting carriers; that twelve of the cows were registered; two of them of the reasonable value of $160 each were lost or killed en route; that one heifer had her hip knocked down, to plaintiff's damage in the sum of $85; that one cow was substituted en route for one of plaintiff's cows which had been lost; that the entire shipment was injured in the total sum of $515.
The defendant's answer admits the death of one cow unloaded at Fort Worth and of another unloaded at Sweetwater, and alleges that they died by reason of natural causes and weakness; that all of the cattle alleged to have been injured were so injured by reason of inherent vice and not through the negligence of defendant or its connecting carriers.
The case was submitted to a jury upon special issues found in favor of plaintiff in the sum of $255. From a judgment entered in accordance therewith, the railway company has appealed.
It appears from the record that, while the cattle were shipped originally from Sulphur Springs, Tex., to Shallowater, Tex., after the shipment left Sulphur Springs they were diverted by the plaintiff, Reynolds, while they were en route, and in accordance with his directions they were carried 4½ miles beyond Shallowater and unloaded at a siding called Roundup. The appellee had the right to divert the shipment, and such right is a part of his original contract. There is nothing in the record which would preclude an inference that the shipment was diverted and carried 4½ miles beyond the original destination by agreement of the parties. This resulted in making Roundup as the real destination, and the market value at that place, instead of at Shallowater, was the proper basis for the estimation of damages. Rio Grande & E. P. Ry. Co. v. Campbell & Co. (Tex. Civ. App.) 288 S. W. 539. A change in destination, being agreed upon by the shipper and the carrier, does not require a new consideration to support it. Davis v. Four Lakes Cattle Co. (Tex. Civ. App.) 245 S. W. 711. The appellant cites Texas & P. Ry. Co. v. Shipman (Tex. Civ. App.) 98 S. W. 449, as authority for its contention that proof of the market value of the cattle at Roundup was inadmissible upon the ground that Roundup was not the destination and that the measure of damages rested on the market value of the cattle at Shallowater, which we presume was named as destination in the bill of lading. The Shipman Case is not in point. No agreement to divert the shipment or change the destination was shown, and Shipman sued to recover the statutory penalty. The facts stated in the opinion are rather meager, but we conclude from reading it that he abandoned the shipment at an intervening station, which abandonment was not, of course, with the consent of the defendant. The court did not err in refusing to direct a verdict for the appellant, since the proof of market value at Roundup was properly admitted.
Complaint is made of the action of the court in permitting Reynolds to testify that twelve of the cows in the shipment were pedigreed or registered cattle and in admitting in evidence two registration certificates issued by the American Jersey Cattle Club. The bills of exception show that the genuineness of the certificates of registration was not established and that the certificates had been handed to Reynolds by a Sulphur Springs bank. The bills further show that the only knowledge he had with reference...
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