Quanah, A. & P. Ry. Co. v. Bone

• Decision Date: 08 January 1919
• Docket Number: (No. 1446.)
• Citation: 208 S.W. 709
• Parties: QUANAH, A. & P. RY. CO. v. BONE.
• Court: Texas Court of Appeals

Page 709

208 S.W. 709

QUANAH, A. & P. RY. CO. v. BONE.

(No. 1446.)

Court of Civil Appeals of Texas. Amarillo.

January 8, 1919.

Rehearing Denied February 5, 1919.

Appeal from District Court, Motley County; J. H. Milam, Judge.

Action by Fred Bone against the Quanah, Acme & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, unless plaintiff enter remittitur.

See, also, 199 S. W. 332.

G. E. Hamilton, of Matador, and Jno. P. Marrs, of Quanah, for appellant.

Bouldin & Surles, of Matador, for appellee.

BOYCE, J.

Appellant, Fred Bone, had a contract for the erection of a bank building at Matador, Tex. He ordered certain material — brick, lumber, cement, etc. — and tools for use in the construction of said building, to be shipped to said place. Such shipments would move over the line of the Quanah, Acme & Pacific Railway Company, the appellant, to its junction with the Motley County Railway Company, at Matador Junction, and thence over said last-named road to Matador. The appellant railway company during this time had some dispute with the Motley County Railway Company, and on account thereof refused to deliver some of these shipments to the Motley County Railway Company, but carried them by said Matador Junction to Roaring Springs, from which point appellant was compelled to haul them by wagon. Other shipments were held by the appellant railway company for a longer time than it was entitled to hold them under the orders of the Railway Commission, but were finally delivered to the Motley County Railway Company and transported to Matador. Appellee, on account of being unable to get material while it was thus being held, had to lay off or pay some of his workmen employed on the building, and was unable to proceed with the work in a regular and systematic manner. He sued for and recovered in this suit actual damages thus sustained and penalties of $250, each for twelve shipments held by appellant railway company, in alleged violation of law. This is the second appeal of this case. Q., A. & P. Ry. Co. v. Bone, 199 S. W. 332.

By the first assignment it is complained that plaintiff was permitted, over objection, to testify that on account of the delay in delivery of material he himself had lost 5 days' time, worth $15 per day, because there were no allegations of damage that would permit the introduction of such evidence, and because it was not alleged that the defendant had notice of such element of damage. The allegation of general notice to the appellant of the nature of the damages that would be suffered by reason of its wrong was, we think, sufficient in this respect. Q., A. & P. Ry. Co. v. Bone, 199 S. W. 332. We do not think, however, that this item of damage fairly comes within any element of actual damages claimed in the petition. There are two specifications of actual damages: It was alleged that, on account of the enforced idleness of his employés, plaintiff "paid such employés an aggregate amount of $787.50" in excess of the amount he would have paid but for the lack of said material. Compensation for plaintiff's own lost time does not fall within this allegation. The other allegation is to the effect that by reason of lack of proper material plaintiff was prevented from carrying on the work in a systematic and orderly course, and that this resulted in an additional delay of 15 days in the completion of said building, and "that the extra expense caused plaintiff for each one of said 15 days was $31.50 per day." In connection with the testimony as to plaintiff's lost time, it appears that plaintiff resided at Amarillo and spent most of his time at that place; that on the occasion when these 5 days were lost he was at Matador, and the work was during such time entirely suspended because the brick were being held by the appellant at Roaring Springs. So that the allegation of the time lost by plaintiff should properly have been in connection with the first element of damages above stated. An analysis of the details of the evidence as to the number of men employed while the work was progressing and the wages paid them shows that the $31.50 per day was not intended to include any allowance for plaintiff's time; besides, pay for plaintiff's own time would not, we think, be properly classed as "expense." This error will not, however, require a reversal of the case if a remittitur in the sum of $75 shall be made by appellee.

By the second assignment appellant complains of the admission of certain evidence which tended to show that one of the cars of lumber owned by plaintiff was wrongfully held by the defendant because the pleading as to such car of lumber was not sufficiently clear to apprise the defendant of what it must answer. The petition distinctly makes these allegations: That this car of lumber was purchased about August 10, 1914, and was thereafter transported and delivered to defendant at Quanah, consigned to R. D. Jones Lumber Company at Matador, and that the defendant refused to deliver the same, but held it for a period of four days at Roaring Springs. This allegation is, we think, sufficient to permit the admission of the evidence. There is no variance between the pleading and the proof. Appellant would probably, on special exception, have been entitled to a more particular statement. This same car of lumber figured in the other trial of the case, and we judicially know from the record in that case that the very evidence which is here complained of was introduced on that trial. Under these circumstances, appellant cannot reasonably claim that it was not apprised of what would be expected to be proven under this allegation.

We do not think there was error in the admission of the evidence referred to in the third assignment, to the effect that some time during the summer of 1914, while the appellant railway company and the Motley County Railway Company were having a controversy over freight matters, the appellant railway company placed a derail on the track of the Motley County Railway Company that connected with the tracks of the appellant railway company. This evidence, considered with the other evidence offered in connection therewith, tended to show...