Panhandle & S. F. Ry. Co. v. Wilson, 5087.

Citation135 S.W.2d 1062
Decision Date04 December 1939
Docket NumberNo. 5087.,5087.
PartiesPANHANDLE & S. F. RY. CO. v. WILSON.
CourtTexas Court of Appeals

Adkins, Pipkin, Madden & Keffer, of Amarillo, for plaintiff in error.

Sanders & Scott, Howard F. Saunders, and A. P. Smith, all of Amarillo, for defendant in error.

STOKES, Justice.

This is an action for damages instituted in the county court by defendant in error against plaintiff in error alleged to have resulted to a shipment of forty-nine head of cattle from Bovina, in this state, to Kansas City, Missouri, on April 6, 1937. The allegations and undisputed evidence show that one of the cows died enroute at Emporia, Kansas, and that two were in an injured and crippled condition when they arrived at their destination. No substantial evidence was presented to sustain defendant in error's allegations of loss in quality and weight of the remaining cattle in the shipment, the evidence being confined to the three head mentioned. The trial was before the court without the intervention of a jury and resulted in a judgment in favor of defendant in error for $133.78, which the record shows without dispute was the diminution in value of the two crippled cows and the value of the one that died at Emporia, Kansas. The trial court filed findings of fact and conclusions of law in which he found that the forty-nine head of cattle, when delivered to plaintiff in error at Bovina, were normal, tractable cattle, in good physical condition and had no inherent defects or vices. He further found that the defendant negatived any acts of negligence on its part.

The conclusion of law was to the effect that since there was no inherent vice or weakness in the animals, which were normal and healthy, the plaintiff in error is liable for the actual difference in value of the shipment caused by the death of the one cow and the injury of the other two.

Plaintiff in error duly excepted to the judgment as entered, gave notice of appeal, and has perfected a writ of error to this court.

The testimony does not disclose the manner in which the two cows received their injuries nor the cause of the death of the one which died at Emporia. Plaintiff in error contends the judgment should be reversed because, first, it overcame any legal presumption that would make it liable as an insurer by exonerating itself in the testimony from negligence of any kind in the manner in which the cattle were handled in transit. Secondly, that the testimony of the witnesses who testified as to the market value of the cattle was based upon hearsay and should have been excluded upon its objection.

Defendant in error proved by his own testimony that the cattle were in good condition when delivered to plaintiff in error at Bovina; that one of them died en route and the other two were in a crippled and damaged condition when the shipment arrived at the Kansas City stockyards. He then introduced a witness by whom he sought to establish the market value of the cattle and the amount of his damages and rested his case, depending upon the rule of law that when a shipment of property is received by a common carrier in good condition and delivered by it at destination in a damaged condition, the carrier is liable for the damage as an insurer of the property.

Plaintiff in error, by depositions of its employees who handled the shipment over the entire route from origin to destination, proved that there was no rough handling of the cattle, no delay in shipment except at Emporia, Kansas, where it was required under the law to unload the cattle for water, feed and rest and, as found by the trial court, exonerated itself completely from any negligence.

Defendant in error contends that the trial court correctly entered judgment in his behalf because he showed that the injuries did not result from inherent vice or weakness of the animals involved in the shipment and that the burden then fell upon plaintiff in error not only to negative the existence of negligence on its part, but to go further and show by affirmative evidence that the injuries to the cattle resulted from one or more of the exceptions established by the law as being those which exempt a common carrier from liability for the injury and damage, viz., (1) the act of God, (2) the act of the public enemy, (3) the act of the public authorities of the state, (4) the act of the shipper, or (5) the inherent vice, propensities or weakness of the animals involved in the shipment.

Since plaintiff in error admits that one cow died in transit and the other two were in a damaged condition upon arrival at destination, as alleged by defendant in error, and defendant in error admits that plaintiff in error has, as found by the court, exonerated itself from negligence, the controlling question presented by the briefs resolves itself into one of whether or not a common carrier, in defending a suit for damages occasioned to a shipment of cattle, where it is shown the animals were delivered to it in good condition and were in a damaged condition upon arrival at their destination, is under the duty to establish the two elements involved in the exceptions laid down by the law as being those which excuse it from liability for the damage. In other words, in this case, did it devolve upon plaintiff in error not only to exonerate itself from negligence in handling the shipment, but also affirmatively to establish the cause or manner in which the cattle were injured and thus bring the cause of their injuries within one of the five exceptions stated by defendant in error?

It has been held by the courts of this state, including the Supreme Court, that, generally speaking, a railway company must receive and transport livestock the same as other property and after receiving them for shipment, it becomes an insurer of the safety of the cattle the same as other property and is bound to transport them against loss from any cause except the act of God, the public enemy, the owner, or vice and propensity inherent in the animals. Gulf, C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S.W. 567, 2 Am.St.Rep. 494; Fort Worth & D. C. Ry. Co. v. Jordan, Tex.Civ. App., 155 S.W. 676; Chicago, R. I. & G. Ry. Co. v. Scott, Tex.Civ.App., 156 S.W. 294.

On account of the nature and disposition of livestock, however, the rule which is strictly enforced as to inanimate freight has been greatly relaxed in its application to the shipment of live animals and it may be said upon good authority that the strict rule in its application to inanimate freight no longer obtains in livestock shipments. Williams & Hawkins v. Gulf & I. Ry. Co., 63 Tex.Civ.App. 543, 135 S.W. 390; Texas Central Ry. Co. v. G. W. Hunter & Co., 47 Tex.Civ.App. 190, 104 S.W. 1075.

Furthermore, it is established law in Texas that the strict rule which makes common carriers liable as insurers of property received by them for transportation is applicable only after they have received them and failed to deliver them at destination or in case of their loss. In cases where shipments have been delayed or damaged in transit but the property is ultimately delivered to the consignee, the carrier is not an insurer of the goods but is bound only by the general rule of liability for a breach of contract, or the public duty which it owes as a common carrier. It is said that the carrier may be excused for delay in receiving the goods or in transporting them after they have been received, whenever the delay is necessarily caused by unforeseen disasters against which human prudence cannot provide, or by accident not caused by the negligence of the carrier, or by thieves, robbers, or other uncontrollable incidents. Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S.W. 191, 8 L.R.A. 323, 18 Am.St.Rep. 45.

Whatever may be the present status of the rule of law which makes a common carrier an insurer of goods received by it for transportation, and regardless of what the rule may be with reference to the exceptions in case of shipments of livestock, it is well established law in this state that when the presumption of negligence arises it devolves upon the carrier to show by testimony there was no negligence on its part in connection with the shipment. When the plaintiff establishes the presumption by showing a delivery of the livestock to the carrier; that they were in good condition when delivered, and that they were received at their destination in a damaged condition, the plaintiff has made a prima facie case and shifted to the carrier the burden of exonerating itself from negligence. Texas & N. O. Ry. Co. v. East, Tex.Civ.App., 57 S.W.2d 175; Leon v. Hines, Tex.Civ.App., 223 S.W. 239.

If the testimony stops there and the carrier adduces no evidence of the manner in which the shipment was handled by it, the plaintiff is entitled to recover. But the rule is equally as well established that, when the case reaches that stage and the burden is thus shifted to the carrier, it adduces legal evidence of the manner in which the shipment was handled and shows by competent evidence that nothing was done or allowed to happen during the time it had possession of the property that could be classed as negligence, it exonerates itself from liability and thus discharges the burden so placed upon it. The prima facie case made by the plaintiff is then destroyed and the duty devolves upon him to proceed further and establish the case made by his pleadings by showing in some manner that the injury and damage resulted from the carrier's negligence.

In this case defendant in error thus made a prima facie case of negligence against plaintiff in error. Plaintiff in error then adduced witnesses who handled the cattle from the time they were...

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7 cases
  • Missouri Pac. R. Co. v. Elmore & Stahl
    • United States
    • Texas Court of Appeals
    • September 12, 1962
    ...v. Crespi & Co., Tex.Civ.App., 259 S.W.2d 928; Railway Exp. Agency v. Hueber, Tex.Civ.App., 191 S.W.2d 710; Panhandle & S. F. R. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062. It is the contention of the shipper that the carrier can only defend against this prima facie cause of action by sho......
  • Missouri Pacific Railroad Co. v. Elmore & Stahl
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    ...the carrier may escape liability for damage thereto by showing the absence of negligence on its part. See Panhandle & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062 (wr. dis.). No attack has been made on the jury findings in this case, and petitioner does not say that the damage to ......
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    • June 12, 1946
    ...exempt the carrier from liability. 13 Corpus Juris Secundum, Carriers, § 254, p. 551; Panhandle & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062. The statement is made in Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 133, 77 N.E. 752, 754, that ‘to rebut and destroy a mere prima......
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