Pecos & N. T. Ry. Co. v. Cox

• Decision Date: 26 June 1912
• Citation: 150 S.W. 265
• Court: Texas Court of Appeals
• Parties: PECOS & N. T. RY. CO. et al. v. COX.

150 S.W. 265

PECOS & N. T. RY. CO. et al. v. COX.

Court of Civil Appeals of Texas. San Antonio.

June 26, 1912.

Rehearing Denied October 16, 1912.

Appeal from District Court, Hall County; L. S. Kinder, Judge.

Action by C. B. Cox against the Pecos & Northern Texas Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 143 S. W. 606.

Terry, Cavin & Mills, of Galveston, Roscoe Wilson, of Lubbock, and Madden, Trulove & Kimbrough, of Amarillo, for appellants. R. R. Hazlewood and Lumpkin, Merrill & Lumpkin, all of Amarillo, for appellee.

FLY, J.

At a former day of this term this court refused to consider the statement of facts and bills of exception, but a writ of error was granted by the Supreme Court, and it was held that, because the trial judge entered an order in vacation extending the time in which to file statement of facts and bills of exceptions, it should be presumed that he had the consent of the parties, although the record is silent in regard to any such consent. The Supreme Court referring to a statute enacted in 1909, p. 352, First Called Session, said: "We are of opinion that the statute copied above did not require the consent of the parties to be in writing, and, the judge having made an order that he could make only by consent of the counsel or parties, the court should presume that the consent was given." The decision has the effect of eliminating that part of the law reading "by consent of the parties," and puts it in the power of a district judge to do anything in vacation that he could do in term time, and, when his act is attacked, the reply will be, "It is presumed he obtained consent." While it is with reluctance that such a construction of the law is followed, we have considered the statement of facts and bills of exception. 143 S. W. 606.

We adhere to our ruling on the first assignment of error, which attacks the service on the Atchison, Topeka & Santa Fé Railway Company. Railway v. Cox, 141 S. W. 327. That ruling disposes also of the third, fourth, sixth, and seventh assignments. Our opinion has been strengthened by a consideration of the statement of facts, which clearly evinces a transparent effort to evade liability by the fiction of change of name at the border of the state. The question was submitted to the jury and the evidence was ample to support their finding.

The ruling of this court was made the subject of one of the errors assigned in the Supreme Court, and, being ignored by that court, it may be presumed that it was not considered error.

The railroad company, which claims that it was not cited, in some way learned of the proceedings in time to file an elaborate motion for a new trial. In the affidavit to the answer of the other railways concerned it was not sworn that the principal corporation was not represented by their agents, but it is carefully stated "that averments of facts in paragraph 16 of the foregoing answer denying partnership of said defendants and the Atchison, Topeka & Santa Fé Railway Company, or of any of said companies with any other of said companies are true and correct as therein stated." The motion for new trial filed by the Atchison, Topeka & Santa Fé Railway Company was not verified by affidavit, and consequently no one has sworn that the principal company's business was not done by the agents of the subcorporations. The evidence, on the other hand, is sufficient to show that the Atchison, Topeka & Santa Fé is in control of the other two roads, of which they form a part. Southern Pac. Co. v. Godfrey, 48 Tex. Civ. App. 616, 107 S. W. 1135. The facts are equally as cogent in this case as in the one cited. The agent, T. W. White, who was served with citation, was the general agent of the Santa Fé system.

The second assignment of error is overruled. The amounts found by the jury were by inadvertence, ignorance, or mistake written in the verdict prescribed in the charge, and the same verdict was written at the request of the jury, in open court, and was signed by the foreman. The Atchison, Topeka & Santa Fé Railway Company was present at the proceeding, which was regular and proper. Only that company complains of the action in regard to the verdict.

The verdict was a joint one, but the court properly rendered the judgment jointly and severally against the appellants. Kuydendall v. Coulter, 7 Tex. Civ. App. 399, 26 S. W. 748; Railway v. Crump, 32 Tex. Civ. App. 222, 74 S. W. 335. The last-cited case is directly in point, and was approved by the Supreme Court. The cases cited by appellants have no bearing on the point.

The proposition that, "in an interstate shipment under contract limiting the liability of each carrier handling the shipment to its own line, one carrier cannot be held liable for the negligence and delay of its connecting carrier," is in the face of the federal statute known as the Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) and the authorities thereon. Railway v. Piper, 52 Tex. Civ. App. 568, 115 S. W. 107, which has been approved by the Supreme Courts of Texas and of the United States. The verdict is not excessive, and there is no evidence of the jury being influenced "by passion or prejudice or other improper motive and not governed by the testimony."

The evidence was ample to show that appellee had a special contract with the appellants to furnish cars in which to ship his cattle. There can be no doubt about the authority of the agent to make the contract, or about his agency. When shippers enter the offices of common carriers, they have the right to...