St. Louis Southwestern Ry. Co. v. Brown & Co.

• Decision Date: 08 February 1923
• Docket Number: (No. 2694.)
• Citation: 248 S.W. 97
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BROWN & CO.
• Court: Texas Court of Appeals

Page 97

248 S.W. 97

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BROWN & CO.

(No. 2694.)

Court of Civil Appeals of Texas. Texarkana.

February 8, 1923.

Appeal from Titus County Court; Dan M. Cook, Judge.

Action by Brown & Co. against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

The appellees brought the suit to recover the value of 28 head of hogs alleged to have escaped from the railway stock pen and strayed away by reason of the negligent maintenance of the stock pen by the railway company. The appellees claim and testified that they drove to town and placed in the stock pen of the railway company at Cookville 105 hogs, and then cared for and fed them, intending to tender them for shipment to Fort Worth, Tex., and that the railway agent afterwards accepted the shipment and issued a bill of lading therefor, but that 28 hogs escaped from the stock pen before they were loaded on the car. The bill of lading was issued by the railway agent shortly before the hogs were loaded on the car. The hogs, as appellees say, were "bottom raised" hogs, undomesticated, and that had to be "run with dogs" in order to "handle them." The appellees had seven or eight employees assisting in driving and caring for the hogs. The hogs arrived at Cookville and were placed in the stock pen about 5 o'clock p. m., January 10, 1922. One of the appellees testified as follows:

"We drove them in the stock pen about 5 o'clock p. m. There was a hole in the stock pen, in the northeast corner. A plank was off that made a hole about four or five feet long. We saw the hole when we first got there. We guarded it awhile. * * * We quit guarding the hole and went off uptown in order to get something to eat."

Appellees claim that the hogs escaped from the pen through that hole while they "were away" at supper, and this was, as it inferable appears, before the bill of lading was issued. The assistants, or employees, seem to have gone with the appellees to eat supper. The appellant denied that there was a delivery to it of more than 77 hogs for shipment. It was undisputed that the railway company transported and delivered 77 hogs to the consignees at Fort Worth. The following agreed facts are quoted from the record:

"The hogs were placed in the pen at 5 o'clock p. m. January 10, 1922. They were loaded at 6:45 p. m. same date, and moved same date about 8 p. m. on train 15."

The appellees and their employees loaded the hogs in the car.

After hearing the evidence, the court entered judgment for the appellees, finding $288.79 as the value of the 28 hogs.

J. M. Burford, of Dallas, for appellant.

Wilkinson & Cook, of Mt. Pleasant, for appellees.

LEVY, J. (after stating the facts as above).

It is insisted by appellant, and the statement of facts sustains the contention, that there is a lack of any evidence showing, or tending to show, the value of the hogs sued for. There is some evidence to show that the hogs would weigh as much as 190 pounds apiece, but no witness undertakes to testify about their selling price or market value. Consequently the finding of the court as to value, being without any evidence to support it, would have to be set aside, operating to reverse the judgment.

However, the more serious question is that of whether or not, in the evidence, the appellees are entitled to recover at all. In the first place, it does not satisfactorily appear from the evidence that at the time the hogs escaped from the stock pen they had been received by the railway company for transportation. It was shown that the appellees placed the hogs in the stock pen and then fed them, intending to tender them to the railway company for shipment, and that they were afterwards "delivered" to the railway company for shipment and a bill of lading was issued and delivered therefor. It further affirmatively appears that the hogs were loaded by appellees and their employees in a car at 6:45 o'clock p. m., shortly after the bill of lading was issued. The hogs, seemingly at the time of the escape were under the exclusive control and possession of the appellees, and had not been received by the railway company for shipment, and must have escaped because of appellees' own negligence in going off and leaving the hole in the fence open and unguarded at the time they went uptown to eat supper. The evidence seems to class the case as one within the ruling in Railway Co. v. Riley (Tex. App.) 1 S. W. 446. But assuming that view to be erroneous (as it may be), and concluding that it should be conclusively presumed from the evidence that the hogs had been delivered to and received by the railway company for shipment at a time before they escaped from the stock pen, the appellees nevertheless cannot legally recover in the special circumstances of this case for the damages sued for. The...