Panhandle & S. F. Ry. Co. v. Montgomery

• Decision Date: 25 March 1940
• Docket Number: No. 5132.,5132.
• Citation: Panhandle & S. F. Ry. Co. v. Montgomery, 140 S.W.2d 241 (Tex. App. 1940)
• Court: Texas Court of Appeals
• Parties: PANHANDLE & S. F. RY. CO. et al. v. MONTGOMERY.

140 S.W.2d 241

PANHANDLE & S. F. RY. CO. et al. v.MONTGOMERY.

No. 5132.

Court of Civil Appeals of Texas. Amarillo.

March 25, 1940.

Rehearing Denied May 13, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Roberts County; Henry S. Bishop, Judge.

Action by S. J. Montgomery against the Panhandle & Santa Fe Railway Company and another, for damages in connection with a shipment of cattle.From a judgment for plaintiff, defendants appeal.

Judgment reformed and, as reformed, affirmed on condition that plaintiff file a remittitur.

Terry, Cavin & Mills, of Galveston, S. D. Stennis and Sturgeon & Sturgeon, all of Pampa, and Hoover, Hoover & Cussen, of Canadian, for appellants.

John F. Studer and Willis & Via, all of Pampa, for appellee.

FOLLEY, Justice.

This is an appeal from a judgment in the sum of $2,760 recovered by the plaintiff, S. J. Montgomery, against the defendants, Panhandle & Santa Fe Railway Company and the Southern Pacific Company, for damages in connection with a shipment of 383 head of feeder stock calves from Mosquero New Mexico, to Mendota, Texas.Such cattle were shipped without a caretaker.

The plaintiff alleged in substance that he delivered the 383 head of cattle to the Southern Pacific Company at Mosquero, New Mexico; that they were loaded on the cars of such railway company at such place and by it transported to Tucumcari, New Mexico, where they were accepted by the Rock Island Railway Company; that the latter company transported the cattle to Amarillo, Texas, where they were delivered to the Panhandle & Santa Fe Railway Company, which company transported them to Mendota, Texas; that the cattle were delivered to the Southern Pacific Company on October 30, 1937, in good condition; that the cattle were unreasonably delayed and unreasonably unloaded and handled in pens and kept en route longer than thirty-six hours; that such cattle were improperly bedded in cars containing some sort of cinders which emitted a pungent and irritating dust which caused a sinus and bronchial infection among the cattle; that the plaintiff and his agent did not know the vicious properties of such dust until after the shipment was made; that the defendants only delivered to the plaintiff 368 head of cattle alive at Mendota; that seven of these were delivered in a dying condition and did die shortly thereafter; that three more head died within a period of three months and six more died during the following summer; that the remainder of the cattle were delivered in a badly damaged condition; that the bedding so furnished, together with the delays and mistreatment of the cattle during shipment, constituted negligence on the part of the defendants which proximately caused the injuries to the cattle; and that by reason of such injuries plaintiff was compelled to feed extra cake to the cattle of the value of $150 and had to administer vaccine of the value of $45.Plaintiff sought damages in the sum of $30 per head for the dead and missing cattle and $5 per head for the remainder of the cattle.

After filing a general demurrer and general denial, the defendants alleged that the plaintiff undertook to load the cattle at Mosquero and that his agents inspected and accepted the cars with the bedding furnished by the initial carriers; that such inspection and acceptance of the bedding in such cars precluded a recovery of any damage which was occasioned thereby; that before loading the cattle they were driven on a hot day a distance of many miles to the point of shipment and arrived at Mosquero late in the afternoon in a rundown, hot, panting and weakened condition; and that if any of such cattle were injured or died en route such was caused by the manner in which they were driven to the shipping point or by their inherent weakness.

The cause was submitted to a jury the findings of which acquitted the defendants of all acts of negligence except that alleged in regard to the bedding furnished in the cars at Mosquero.It was upon the remaining findings of the jury that the judgment was based.These findings in substance were as follows: That the plaintiff's cattle at the time they were loaded for shipment were in proper condition to be shipped; that 373 head of plaintiff's cattle were injured; that 383 head were loaded in the railway cars at Mosquero; that the bedding furnished at Mosquero was not the proper bedding for cattle; that the furnishing of such bedding was negligence and the proximate cause of the injuries and death of the cattle; that the market value of the cattle at the time and in the condition in which they arrived at Mendota was $24 per live head; that had such cattle been delivered in the exercise of ordinary care their market value would have been $30 per head; that it was necessary to administer vaccine to the cattle on account of their condition at the reasonable cash value of $45; that on account of the injured condition of the cattle it was reasonably necessary to feed plaintiff's cattle extra cake of the reasonable value of $150; that the cattle were not in a hot or panting condition or in an emaciated or run-down or weakened condition at the time they were received by the Southern Pacific Company for shipment; and that the agent of the plaintiff did not know how the cars in question were bedded at the time the cattle were loaded.The court thereupon rendered judgment for the plaintiff against both defendants in the sum of $2,760; the manner of arriving at such sum we shall later discuss.

Since the evidence shows that the bedding was furnished by the Southern Pacific Company at Mosquero, New Mexico, the defendantPanhandle & Santa Fe Railway Company contends that it was error for the court, under the above verdict of the jury, to render judgment against it.Neither of the defendants sought any relief as against the other in the pleadings upon which the trial was had.Therefore, the question of contribution or that of adjusting the equities, if any, of the defendants as between themselves was not before the trial court and is not properly before this court.This being an interstate shipment of cattle the recovery will be governed by Title 49 of U.S.C.A. § 20, Par. (11), with reference to interstate shipments.This act as it now exists, we think, clearly implies that "any common carrier delivering property received for transportation in interstate commerce, and transported, is liable to the owner thereof for any damage caused by such delivering carrier or by the carrier originally receiving it or by any intervening carrier over whose line the property has passed; and, accordingly, the delivering carrier will be held liable thereunder in an action by the shipper for damages caused by the other carriers."13 C.J.S., Carriers, pp. 929, 930, § 424.The assignment will therefore be overruled.Stinson v. Yazoo & M. V. R. Co., La.App., 159 So. 422;Bonfiglio v. New York, N. H. & H. R. Co., 292 Mass. 287, 198 N.E. 236;Perkel v. Pennsylvania R. Co., 148 Misc. 284, 265 N.Y.S. 597.

The defendants also assert that since the jury found the cattle were transported from the point of origin to the point of destination with ordinary care and reasonable diligence the presumption of law is that the damaged condition in which the cattle were delivered was due to the inherent vice of the animals and not to any negligence of the defendants, and therefore the court erred in rendering judgment herein.We think it sufficient to say that the jury made no such finding.On the contrary, the jury found that the cars were improperly bedded and that such improper bedding was negligence and the proximate cause of the injuries.

By numerous propositions, most of which are mere repetitions, the defendants attack the finding of the jury with reference to the improper bedding in the cars, and, as an incident thereto attack the judgment based upon such finding.They assert, first, that the agents of the plaintiff inspected the cars before they were loaded, that such agents accepted such bedding without complaint and therefore the plaintiff was estopped to claim any damages by reason of the injuries caused by such bedding.Secondly, they assert that the evidence showed that cinders are commonly used as bedding for cattle and therefore the defendants exercised ordinary care in furnishing such bedding as is customarily used for shipments of cattle.

The evidence shows that the plaintiff purchased his cattle near Mosquero a short time before they were shipped.Roy Mathers, his friend and neighbor also purchased other cattle near Mosquero about the same time.The plaintiff did not go in person from his home in Miami, Texas to Mosquero to load his cattle but sent his employee, C. L. Dial, to attend to the shipping.Since Mathers was to ship his cattle at the same time and by the same train the plaintiff requested him to assist Dial in loading plaintiff's cattle, however, the testimony failed to show that Mathers had any authority from the plaintiff to accept or reject the cars upon which plaintiff's cattle were loaded.Mathers' cattle were placed in two cars of the train and plaintiff's were loaded in six other cars, all of which were bedded with cinders.Dial did not inspect the cars and was absent at least part of the time while they were being loaded.His testimony was to the effect that he did not take part in the loading of the cattle but was at the depot near the stock pens most of the time while they were being loaded.The cattle in question were placed in the stock pens after having been driven from a nearby ranch where they were purchased and while in these pens were inspected by the cattle inspector.Mathers did see the bedding in the cars and was present while all the cattle were being inspected and loaded.His testimony was that his cattle were loaded first and that when the first car was loaded a fog of dust was emitting from the car as the door was closed.He further testified that such dust caused him to...