Texas Midland R. R. v. O'Kelley

• Decision Date: 13 March 1918
• Docket Number: (No. 1293.)
• Citation: 203 S.W. 152
• Parties: TEXAS MIDLAND R. R. v. O'KELLEY et al.
• Court: Texas Court of Appeals

203 S.W. 152

TEXAS MIDLAND R. R. v. O'KELLEY et al.

(No. 1293.)

Court of Civil Appeals of Texas. Amarillo.

March 13, 1918.

Rehearing Denied May 8, 1918.

Appeal from Hunt County Court; A. J. Gates, Judge.

Action by S. F. O'Kelley and another against the Texas Midland Railroad. Judgment for plaintiffs, and defendant appeals. Affirmed.

Coke & Coke and S. W. Marshall, all of Dallas, and Dashiell, Terry & Brown, of Terrell, for appellant. Carpenter & Horton, of Greenville, for appellees.

HUFF, C. J.

This was an action brought by O'Kelley and Wolfe for damages to 115 head of hogs, occasioned by the negligence of the Texas Midland Railroad. It is alleged by the appellees that on the 9th day of January, 1917, they made a contract with the appellant company to ship 115 hogs from Quinlan, Tex., over its road by the way of Greenville and the St. Louis & Southwestern Railway Company to Ft. Worth, and that its duly authorized agent agreed that a car would be furnished at Quinlan for such service on January 11, 1917, following, and that appellees advised the agent they would have their hogs there on that day ready for shipment; that in pursuance to such agreement they placed their hogs in the pens of appellant on the morning of the 11th, but appellant failed to furnish a car at said time and not until January 17, 1917; on the third day following the placing of the hogs in the pens a seven-inch snow fell, and that until the car arrived the hogs were in open pens, exposed, etc.; that there were no troughs in the pens, and the hogs were mast fed and not used to dry feed. By virtue thereof and in routing them by Terrell and the Texas & Pacific Railway Company, instead of by Greenville, as directed, the appellee suffered damages, itemizing the damages, aggregating $565.45. The answer alleges want of authority in the agent to make the contract, and alleges there was an unprecedented demand for stock cars at that time and that it was impossible to furnish the cars on that day without discriminating against other shippers, and alleged contributory negligence and driving the hogs to pen off the mast without first knowing that the car was ready, and in thereafter holding them in the pens, etc. The case was tried before the court without a jury, who rendered judgment for $270.30 damages. There are no findings of fact or conclusions of law in the record filed by the trial court.

The first assignment is that the court erred in not holding the contract void because the car could not have been furnished without discriminating against other shippers desiring to transport stock.

The local agent had authority to make the contract for cars. McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164; Easton v. Dudley, 78 Tex. 236, 14 S. W. 583; Railway Co. v. Bishop, 154 S. W. 305, 310. If the testimony of the appellees is true, after delivering the hogs they asked the agent about the car every day, and he promised each time that he would have it there the next day, and on one occasion after the hogs were in the pen he said there was a car shortage, but promised to have the car there the next morning, and on another occasion said that McKay told him not to trouble him any more about the car. Written notice was given by appellee on the 15th to furnish the car, and on the 17th the car was furnished. The court, from the evidence, we think was justified in finding that the appellee had no notice of any car shortage until after the hogs were placed in the pen, and, when they received this notice it was...