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

• Decision Date: 09 December 1925
• Docket Number: (No. 2569.)
• Parties: PANHANDLE & S. F. RY. CO. v. ANDREWS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

278 S.W. 478

PANHANDLE & S. F. RY. CO. v. ANDREWS.^*

(No. 2569.)

Court of Civil Appeals of Texas. Amarillo.

December 9, 1925.

Rehearing Denied January 6, 1926.

Appeal from Gray County Court; T. M. Wolfe, Judge.

Suit by John V. Andrews against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills, of Galveston, Hoover, Hoover & Willis, of Canadian, and Studer & Studer, of Pampa, for appellant.

Chas. C. Cook, of Pampa, for appellee.

HALL, C. J.

John V. Andrews sued the appellant, railway company, in the county court of Gray county to recover $223.51, total damages alleged to have been sustained by him upon a shipment of 75 head of cattle from Pampa, Tex., to Kansas City, Mo. He alleges that on the morning of September 29, 1923, in pursuance of instructions from the defendant's agent, he placed his cattle in the company's stock pens at Pampa about 10 o'clock a. m., and that defendant did then and there agree, obligate, and contract with plaintiff to transport the same to destination with reasonable care, diligence, and dispatch; that defendant's agent at Pampa instructed plaintiff to place said cattle in said pens early on the morning of September 29th; that the defendant's agent accepted and received said cattle at said time to be shipped to Kansas City with reasonable care, diligence, and dispatch.

He further alleges that the pens were muddy, boggy, and in very bad condition; that it rained frequently during the day, and that the longer the cattle remained in the pens the worse they became; that while the cattle were in there the gates came off the hinges, and plaintiff's cattle were permitted to go into other pens, where they were mixed and mingled with the cattle of other parties; that his cattle remained in the pens without food or water for about 30 hours; that they could have been loaded into cars and started on their journey within two hours after being placed in the pens, but that defendant refused to load or permit them to be loaded, whereby the cattle were detained an unnecessary and unreasonable length of time, thereby causing them to lose extra flesh and weight and greatly depreciated in market value at destination; that said agent told plaintiff to put his cattle in the pens early on the morning of September 29th, and that there would be a train during the morning that would pick up his cattle in the morning or about the noon hour; that said pens were not properly drained; that several trains passed through the town of Pampa while said cattle were in said pens which could and should have picked up the cattle, but refused to do so; that his cattle were not loaded until about 4 o'clock p. m., on the 30th day of September, and after they had remained in the pens since 10 o'clock of the morning before without food or water; that, had said cattle not been detained in the pens for such unreasonable length of time, they would have arrived in Kansas City in time to have been sold on the Monday's and Tuesday's market following, but, by reason of delay in transportation and being detained in the pens, they arrived at destination at 6 o'clock p. m., on the 2d day of October, too late to be sold on that day's market; that they were placed on the market October 3d, and were sold at the average price of $5 per hundred for the calves and $4 per hundred for the cows, there being 25 calves and 50 cows in said shipment, said amount so received not being their market value in said market at said time on Monday and Tuesday, being the 1st and 2d days of October, 1923, at destination; that said calves were worth on said market the average price of $5.50 per hundred; that said cows were worth the average price of $4.50 per hundred, being at least 50 cents per hundred pounds more than they were worth and were sold for at the time they were actually delivered and sold on said market; that there was a decline of 50 cents per hundred pounds in the market value of said cattle, and of such cattle generally, from the time they should have arrived and should have been delivered by defendant to plaintiff in Kansas City, if transported with reasonable diligence and speed, and not detained in said pens for said unreasonable length of time, and the time said cattle did arrive and were delivered to plaintiff, to plaintiff's damage in the sum of $265.92 by reason of the decline in the market of such cattle; that, by reason of said cattle being detained in said pens for said unreasonable length of time and in the condition said pens were in during said time, and by reason of being detained in the cars by reason of being transported to Kansas City without food or water, and being without said food or water while in said pens, plaintiff has been damaged in the further sum of $131.25, being the difference in the market value of said cattle at Kansas City, had they been transported with reasonable dispatch, and not been detained in said pens without food or water, and the value of said cattle in the condition they were when actually received at destination; that a reasonable time in which to transport said cattle from Pampa to Kansas City, after they were delivered in the pens at Pampa, is 28 to 36 hours, and that said time is a reasonable time to confine cattle in stock pens without rest, food, or water, and over that time, especially 80 hours, is an unreasonable time to hold cattle on the cars and in the pens, in order to transport them from Pampa to Kansas City.

Plaintiff alleges that he has been damaged in the aggregate sum of $397.17 on account of the decline in the market of said cattle, and their being held and detained in the pens for such an unnecessary and unreasonable time in the condition in which said pens were at said time, and alleges that defendant was negligent in permitting them to be placed in said pens and in not loading them on the cars, as it was in duty bound and agreed to do, and in not transporting them to Kansas City within a reasonable time after accepting them for shipment, and that plaintiff's damage is the direct and proximate result of the defendant's negligence and in the manner alleged in this petition.

The case is submitted here upon 30 propositions, based upon 40 assignments of error contained in the motion for new trial.

The first proposition is that the petition is subject to demurrer because its allegations do not furnish any basis for calculating the damages, when it does not show the weights of the cattle, and because it seeks to recover on a contract to ship cattle at a particular time upon a particular train and in time for a particular market, in violation of the law against discrimination. The trouble with this proposition is that it is not sustained by the allegations of the petition. Plaintiff did not allege a special contract to ship his cattle at any particular time or on any particular train or for any particular market, and, as we read the pleading, there is no allegation which can be so construed. He says the agent told him when to put his cattle in the pens, and the agent certainly had authority to so instruct him. As a reason why he should put his cattle in the pens early in the morning, it is alleged that the agent told him that a train would be along that morning or about noon which would pick up his cattle. These statements fall far short of alleging a special contract of the nature described in the proposition. We know of no rule of law, and the appellant cites no case, which requires the plaintiff in suits of this character to allege the weights of the cattle at the initial point and at destination. He alleges that the loss on his cattle was at the rate of 50 cents per hundred, and gives the total loss. If the appellant desired to know how many pounds the cattle weighed, a simple mathematical calculation would have given the information. It is not improper to allege the weights of the cattle, but we think such an allegation is the statement of evidence, and unnecessary. T. & P. Ry. Co. v. Sherrod, 99 Tex. 382, 89 S. W. 956; Fort Worth & R. G. Ry. Co. v. Montgomery (Tex. Civ. App.) 141 S. W. 813; Chicago, R. I. & G. Ry. Co. v. Manby (Tex. Civ. App.) 207 S. W. 157; T. & P. Ry. Co. v. Turner, 1 Tex. Civ. App. 625, 20 S. W. 1008.

The case of Easton v. Dudley, 78 Tex. 236, 14 S. W. 583 does not hold otherwise. What is here said also disposes of the second proposition.

It is contended by the third proposition that the petition is subject to the special exception, because it alleges that several trains passed through Pampa while the cattle were in the pens which could have picked up the cattle but refused to do so, and further fails to specify what time the trains arrived, what sort of trains they were, how they could have taken the cattle, the persons in charge of the trains, and facts and circumstances that would show they could have taken the cattle. This contention is without merit. Plaintiff sued the defendant upon its common-law liability. A railway company is required, both by statute and the common law, to receive and transport live stock with reasonable care, diligence, and dispatch. Act of Congress, Feb. 28, 1920, c. 91, §§ 436-438 (U. S. Comp. Stat. Ann. Supp. 1923, § 8604a); M., K. & T. Ry. Co. v. Webb, 20 Tex. Civ. App. 431, 49 S. W. 526. It was unnecessary for plaintiff to allege that several trains...