Texas & N. O. R. Co. v. Russell

• Decision Date: 28 November 1906
• Citation: 97 S.W. 1090
• Parties: TEXAS & N. O. R. CO. v. RUSSELL.
• Court: Texas Court of Appeals

97 S.W. 1090

TEXAS & N. O. R. CO. v. RUSSELL.

Court of Civil Appeals of Texas.

November 28, 1906.

Appeal from Liberty County Court; F. C. Crane, Judge.

Action by J. M. Russell against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood, J. F. Dabney, and Stevens & Pickett, for appellant. Marshall & Marshall and Lovett & Harrison, for appellee.

NEILL, J.

This is an appeal from a judgment for $165, damages rendered in favor of appellee, plaintiff below, against the railroad company.

Plaintiff's cause of action is stated in his petition substantially as follows: "That plaintiff and wife took passage on one of defendant's trains from Liberty to Dayton, Tex., on or about July 6, 1905, having purchased tickets entitling them to transportation with their baggage, and that he tendered, and defendant accepted for transportation, four certain boxes or trunks, one of which contained wearing apparel, and the others contained various carpenter's tools. That, at the time of the purchase of the tickets and delivery of the baggage, he notified defendant of the existence of a contract he had with H. Schroeder for the erection of a building at Dayton, and he advised defendant that, if his said tools were not transported in time, he would lose said contract, and would incur expense for wages of men whom he had employed, and who were waiting at Dayton for the arrival of himself and tools. That plaintiff, his wife, and child accompanied the baggage, and upon arrival at Dayton presented the checks, but that defendant failed for several days to deliver said baggage, and that, when it was finally delivered, the tools in one of the boxes, consisting of an adz, plane, square, hammer, and various other carpenter's tools, were gone; the defendant having converted and appropriated the same to its own use and benefit. That there was a delay of five days in delivering the balance of said baggage, and by reason of the unreasonable delay in transporting the same, plaintiff lost a contract which he had with one H. Schroeder to erect certain buildings in Dayton, which contract was in the sum of $125, of which plaintiff represents he would have made $60 over and above expenses. That he was compelled to pay $40 in wages to workmen, whom he had employed, in consequence of said delay. That plaintiff and wife and baby were deprived of the use of their wearing apparel, and that the use of same was of the value of $150. The value of the lost tools is alleged at $25."

The defendant answered by general demurrer, and by special exceptions to the petition for the following reasons: (1) Because no right is shown to recover consequential damages arising from plaintiff's failure to secure the contract; (2) because no right is shown to recover the item of $150 for doing without the use of wearing apparel during the delay; (3) because the petition fails to give an itemized statement of the tools delayed and the tools lost, with their value; and (4) because the petition fails to give an itemized list of the articles of wearing apparel, with the value. The third special exception was sustained, and the others overruled. The plaintiff then filed a trial amendment, itemizing the tools lost, stating the value of each. The case was tried before a jury, and the trial resulted in the judgment appealed from. Such facts as are pertinent to the assignments of error will be stated when we come to consider them.

It is complained in the first assignment of error that the court erred in not sustaining the special exception to plaintiff's petition which points out its failure to itemize the articles of wearing apparel alleged to have been delayed in delivery. It will be noticed from appellee's petition that damages are not claimed for loss of wearing apparel, but for such as were suffered by reason of appellant's negligent delay in delivering the trunk containing the clothing of appellee's wife and baby. This does not make a case requiring the plaintiff to itemize the articles of wearing apparel. All that was required was for him to apprise the court and defendant of the facts he relied upon to recover the damages occasioned in consequence of the delay. Such facts were sufficiently averred by the petition.

The second assignment of error is directed to this part of the court's charge: "If you believe said articles, or any of them, delivered to defenda...