St. Louis, I. M. & S. Ry. Co. v. Boshear

• Decision Date: 07 March 1908
• Citation: 108 S.W. 1032
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BOSHEAR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

108 S.W. 1032

ST. LOUIS, I. M. & S. RY. CO. v. BOSHEAR.^*

Court of Civil Appeals of Texas.

March 7, 1908.

Rehearing Denied March 28, 1908.

Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.

Action by T. B. Boshear against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leake & Henry, for appellant. W. B. Wynne, for appellee.

TALBOT, J.

This suit was instituted by the appellee against the appellant and the Texas & Pacific Railway Company to recover damages to 214 head of beef cattle. It was alleged that the plaintiff, Boshear, contracted with W. D. Young, traveling freight agent of the appellant, and with L. J. Mantius, local agent of the Texas & Pacific Railway Company, at Wills Point, Tex., for seven cars in which to ship said cattle to East St. Louis, Ill.; that said cars were to be furnished at the stock pens at Wills Point, and were to be ready for loading the cattle on the morning of November 11, 1905, and then to be transported over the line of the said Texas & Pacific Railway Company from Wills Point to Texarkana, and thence over the line of appellant to their destination at the stockyards in East St. Louis; that plaintiff had his cattle in the stock pens ready to be loaded on the morning of November 11, 1905, but the cars did not arrive until about 5 o'clock a. m. November 12, 1905, and in the meantime the cattle remained in a badly crowded condition, without feed and water for more than 24 hours in pens which were muddy and in bad condition, whereby they lost greatly in weight and general appearance, and were greatly damaged; that the appellant, the St. Louis, Iron Mountain & Southern Railway Company, negligently and roughly handled the cattle between Texarkana and their destination, causing the cars to bump together and injuring the cattle, etc.; that the cattle were delayed between Texarkana and East St. Louis about 40 hours; that they should have reached their destination on November 14th, had they been promptly transported between Texarkana and East St. Louis; that had the cars been furnished on the morning of November 11th, according to contract, and the shipment transported without unreasonable delay, the cattle would have reached their destination in time for the market on Monday November 13, 1905; and that by reason of the negligence of the defendants the plaintiff was damaged in the sum of $1,926. The defendant, Texas & Pacific Railway Company, answered by general denial, and specially that there had been no agreement on its part to furnish cars for the shipment of the cattle, and also pleaded that its liability in the transportation of the cattle was by contract expressly limited to its own line of railway. The defendant, St. Louis, Iron Mountain & Southern Railway Company, pleaded its privilege to be sued in Dallas county, Tex., and not in Van Zandt county, in that it was a foreign corporation operating a line of railway entirely without the state of Texas, and did not own or operate any railroad in Texas; that it had an agent in Dallas county, but none in Van Zandt county; that no part of the plaintiff's cause of action against this defendant arose in Van Zandt county; that it had no contract in writing with plaintiff to be performed either in whole or in part in said Van Zandt county, but, on the contrary, its obligation to plaintiff was by written contract limited to its own line of railway. The plea of privilege further negatived all the supposable exceptions of the venue statute, and denied the existence of any partnership between the defendants. The said plea further averred that venue in the case was not conferred by the act of the Legislature of 1905 (Gen. Laws 1905, p. 29, c. 25), because of the unconstitutionality of said act, and for the particular reason that the said act was in violation of the commerce clause of the Constitution of the United States. Reserving its right under its plea of privilege, this defendant answered by general denial, and that the said shipment of cattle was transported by it under a written contract limiting its liability to its own line of railway; that if there was any injury to the shipment when this defendant delivered the same at the end of its road to the next connecting carrier such injury arose from the inherent character of the animals themselves, or from causes not attributable to any negligence of this defendant. This defendant further alleged that this shipment of plaintiff was transported over its line of railway under a written contract, executed in the state of Arkansas to be performed in that state and in the state of Missouri; that said contract among other things provided that the measure of recovery, if there should be any damage to the shipment en route, should be based upon the value of the live stock at the time and place of shipment, and also required that the shipper should give notice in writing of any alleged injury or damage before the live stock was removed from the point of destination or mingled with other stock, and within one day of their arrival at destination, which provision was not complied with; that each of said provisions were valid and binding under the law of Arkansas. Plaintiff replied to the answer of defendant, and, among other things, pleaded that nothing was said about any written contract; that if any contract was made at Texarkana other than the one stated by him the same was obtained without any reduction of the freight rate and through fraud and without any consideration whatever. Appellant's plea of privilege was overruled, and upon a trial before a jury a verdict and judgment were rendered in favor of the Texas & Pacific Railway Company and against the appellant for the sum of $750, from the latter of which judgments the appellant has appealed.

No injury is shown to have resulted to appellant by the action of the court in refusing to hear and determine appellant's plea of privilege asserting its right to be sued in Dallas county in advance of the trial of the case upon its merits. This, we think, was a matter addressed to the discretion of that court, and this discretion does not appear to have been abused to the detriment of appellant, and will not be reviewed. Nor did the court err in refusing to instruct the jury, as requested by appellant, to return a verdict for appellant upon its said plea of privilege. As held by this court in the case of Railway v. Wester (Tex. Civ. App.) 96 S. W. 769, the statute of 1905 regulating the venue of suits against common carriers was a proper exercise of the state's police power, and was not invalid as to an interstate carrier, in that it imposed "such burdens on interstate commerce, as distinguished from commerce within the state, as amounts to an infringement upon the power of Congress to regulate interstate commerce." See, also, Railway v. Moon, 103 S. W. 1176, 19 Tex. Ct. Rep. 10.

Appellant's first and second assignments of error complain respectively of the court's action in permitting the witness, Jard Allen, to testify that less than 48 hours was the usual and customary time for a shipment of cattle to be transported from Wills Point, Tex., to East St. Louis, Ill., by the Texas & Pacific Railway Company and the appellant's line, and in admitting the testimony of Allen and Ike Sewell in relation to the usual and customary time consumed in the transportation of a shipment of cattle between said points. We think there was no error in the admission of the testimony. These witnesses were qualified to form an opinion on the subjects to which their testimony related. They stated the facts and data upon which their conclusions were based, which were sufficient to authorize the reception of them to be considered by the jury, together with the other evidence in the case in determining the question upon which they bore. Both of these witnesses were cattlemen of large experience, and had been for a long time extensive shippers of cattle from Kaufman and Van Zandt counties. They both testified that they knew the time it required to transport cattle over the lines of the Texas & Pacific Railway and appellant from Wills Point to East St. Louis; that if a shipment left Wills Point Saturday morning it ought to arrive on the market at East St. Louis the following Monday. Allen swore that he had made two shipments over the lines of the Texas & Pacific Railway and St. Louis, Iron Mountain & Southern Railway since the shipment involved in this case, and that one of them made the run from Wills Point to East St. Louis in about 48 hours, and the other left Wills Point on Saturday afternoon and reached East St. Louis before the market opened on the next Monday morning. Sewell said he had made two shipments since the law went into effect allowing cattle to remain on the cars as much as 36 hours, and in each case his cattle got to East St. Louis within 36 hours.

The third assignment insists that the court erred in admitting the testimony of the appellee, Boshear, to the effect that the difference in the value of his cattle at East St. Louis in the condition they should have arrived there and in the condition they were when they did arrive was $10 per head. The court did not commit reversible error in the admission of this testimony. The witness had been handling cattle for about 30 years, and knew the character and condition of his cattle when they reached East St. Louis. He...