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

• Citation: 222 S.W. 170
• Decision Date: 26 May 1920
• Docket Number: (No. 125-3004.)
• Parties: PECOS & N. T. RY. CO. v. HALL.
• Court: Texas Supreme Court

222 S.W. 170

PECOS & N. T. RY. CO. v. HALL.

(No. 125-3004.)

Commission of Appeals of Texas, Section A.

May 26, 1920.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. F. Hall against the Pecos & Northern Texas Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (189 S. W. 535), and defendant brings error. Reversed and rendered.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for plaintiff in error.

R. R. Hazelwood and J. M. Jones, both of Amarillo, for defendant in error.

TAYLOR, J.

J. F. Hall early in October, 1913, entered into a contract with Warren & Son, ranchmen, by which he agreed to take from them all their heifers of a certain class, less a 10 per cent. cut back. The cattle were located on a ranch in Parmer and Bailey counties, Tex., and by the terms of Hall's contract of purchase were to be by the owners rounded up at Cyclone Well, where Hall was to make his cut back. Following this, the cattle to be received by Hall were to be taken to Bovina, a station on the Pecos & Northern Texas Railway Company's line about five miles from Cyclone Well, and there delivered to Hall on October 24th. Hall was purchasing the cattle for shipment from Bovina to Kansas City for immediate slaughter and on October 14th ordered cars in which to move the shipment on the 24th.

The territory, including all of Bailey and Parmer counties, as well as the ranch upon which the cattle were located, was then under quarantine established by both state and federal authorities on account of the prevalence of a disease known as scabies.

On October 22d, before the cattle were to be rounded up for Hall to make his cut back, L. L. Jones, an inspector for both the Live Stock Sanitary Commission of Texas and the Bureau of Animal Industry for the federal government, informed the station agent at Bovina, John Lucas, that he would not issue a shipping permit for the cattle, unless they were dipped. Lucas thereupon communicated by wire with the company's general freight agent, and was advised not to receive the cattle for transportation unless they were accompanied by a shipping permit. Following this, Lucas attempted to get in telephone communication with Warren & Son's foreman, Mr. Morehead, for the purpose, according to his statement, "of not having him go to the trouble of bringing in the cattle without knowing they would be clear for shipment." Lucas failed to get in communication with Morehead, but later in the day talked to Inspector Jones, who volunteered his services in the matter of either seeing Morehead direct, or sending him word that Lucas would not receive the cattle for shipment until a permit had been issued. Morehead testified that he received the message from Jones that the cattle would not be received for shipment until they had been dipped. For that reason, he testified, he did not take the heifers to Bovina on the 24th for delivery. The night following the conversation between Jones and Morehead the latter talked with Hall over the telephone, with the result that the cattle were dipped the next day under Hall's instructions. A shipping permit was issued, and on October 31st the cattle were delivered to Hall at Bovina, and by Hall to the railway company, and shipped.

Hall sued the railway company for the damages sustained by the cattle resulting from the dipping. He states in his first supplemental petition that the gist of his cause of action "is the unlawful, illegal, and negligent requirement by the defendant that plaintiff procure a certificate of the inspection and permit, which would require dipping of the cattle in question before it would accept them for shipment."

Rule 19 of the Live Stock Sanitary Commission of Texas, promulgated under the quarantine laws of the state, and in force at the time of the transactions above detailed, recites that, whereas it had been ascertained by the Live Stock Sanitary Commission that scabies, a contagious, communicable disease, was prevalent among the cattle in the counties named, including the counties of Parmer and Bailey, that to the end the disease be eradicated from among the cattle of Texas, the movement of any catle from, through, or into the counties named should be made in the manner and under the conditions thereafter prescribed.

The conditions prescribed by rule 20 of the commission were, in effect, that no cattle held in the counties named should be moved from the pastures where located for any purpose whatsoever without a permit issued by a duly authorized inspector of the commission, and that no cattle within the territory designated should be tendered for inspection to a federal inspector for interstate movement, unless the owner of the cattle was in possession of a certificate signed by an inspector for the commission, stating that the owner of the cattle tendered had complied wih the state laws, rules, and regulations of the commission, and that his range and cattle were free of infection.

Regulation No. 21 of the Bureau of Animal Industry for the federal government, promulgated and in force at the same time, provides that cattle not visibly diseased, but which may be part of a diseased herd, may, without inspection, be shipped interstate as "uninspected exposed cattle" for immediate slaughter, from points in the quarantined area to any recognized slaughtering center where pens were provided for yarding exposed cattle, provided the officers of the transportation company fixed to both sides of the cars carrying such cattle a durable placard on which was printed in the type prescribed the words, "uninspected exposed cattle." Plaintiff contended that, inasmuch as his cattle were of the class designated, they were eligible to shipment under the federal regulation, without dipping and without the issuance of a certificate or permit.

The court received in evidence the rules of the Live Stock Sanitary Commission offered by defendant, but after the evidence was concluded withdrew them from the consideration of the jury. The charge was, in substance, that if the cattle were uninspected exposed cattle, but not diseased, and plaintiff ordered cars for their transportation on October 24th from Bovina to Kansas City for immediate slaughter, and that prior to the time for shipment defendant announced it would not receive and transport the cattle without a certificate or permit, or unless they were first dipped, and that such announcement, if any, was communicated to plaintiff, and that the only lawful way by which a shipping permit or certificate could be obtained was for the cattle to be dipped, and that in compliance with the announcement the cattle were dipped, and from the dipping as a proximate cause sustained the injuries alleged, to find for plaintiff.

The trial resulted in a verdict and judgment for plaintiff. The Court of Civil Appeals affirmed the judgment. 189 S. W. 535. The writ was granted upon application referred to the committee of judges.

Plaintiff seeks to predicate liability upon the station agent's statement that he would not receive the cattle for transportation unless they were dipped and the subsequent act of dipping resulting in their injury, and attempts to discharge the burden of showing that plaintiff could have lawfully tendered the cattle for shipment without dipping on the date the cars were due to be furnished at Bovina, by invoking federal regulation No. 21.

The difficulty arises from the fact that at the time of the agent's statement, by which it is claimed he waived the company's right to an actual tender of the cattle for shipment, they were in the custody of Warren & Son in their pasture several miles distant from Bovina. They were at that time also a part of a diseased herd in infected territory, and had not been tendered to a federal inspector for interstate movement; nor had a permit or certificate been issued preliminary to such movement, as required by the state quarantine rules.

Defendant in error questions the validity of the state rules, and points out that in 1905 Congress enacted sections 8703, 8704, U. S. Comp. Stats. 1916, relating to the interstate shipment of diseased and exposed cattle from quarantine districts; that under section 8703 it is the duty of the Secretary of Agriculture to promulgate rules and regulations governing the inspection, certification, treatment, handling, and the...