Texas & P. Ry. Co. v. Cauble

• Decision Date: 23 May 1914
• Docket Number: (No. 7968.)
• Citation: 168 S.W. 369
• Parties: TEXAS & P. RY. CO. v. CAUBLE et al.
• Court: Texas Court of Appeals

Page 369

168 S.W. 369

TEXAS & P. RY. CO. v. CAUBLE et al.

(No. 7968.)

Court of Civil Appeals of Texas. Ft. Worth.

May 23, 1914.

Rehearing Denied July 4, 1914.

Appeal from Shackelford County Court; J. A. King, Judge.

Action by C. M. Cauble and another against the Texas & Pacific Railway Company and another. From a judgment against it in favor of plaintiffs and the other defendant, the defendant named appeals. Reversed and remanded in part.

The defendant Morris testified that the conductor said he sent a message to the dispatcher, asking permission to make his train a through freight, so that he could reach the morning market with the cattle, and that the dispatcher replied that he must go ahead and do his work along the route as originally directed.

Earl Conner, of Eastland, for appellant. Spell & Sanford, of Waco, and Walter L. Morris, of Albany, Tex., for appellees.

SPEER, J.

C. M. and W. H. Cauble instituted this suit in the county court of Shackelford county against the Texas Central Railroad Company and the Texas & Pacific Railway Company to recover damages for the alleged failure on the part of the railway companies to exercise ordinary care in the transportation of 139 head of cattle from Albany to Ft. Worth, resulting in the loss of the morning market of September 26, 1912. The defendants answered, the Texas Central Railroad Company sought judgment over against its codefendant, there was a trial before a jury, resulting in a verdict and judgment for the plaintiffs against both defendants, and over against the Texas & Pacific Railway Company in favor of the Texas Central Railroad Company. The Texas & Pacific Railway Company alone appeals.

No briefs have been filed for appellees, and under rule 41 for the Courts of Civil Appeals (142 S. W. xiv), we are authorized to consider the statements of the appellant in its brief as being acquiesced in, and we have, accordingly, done so.

On the trial the court permitted the witnesses C. M. Cauble and W. H. Cauble to testify as to the effect that a 24-hour delay would have on the cattle shipped from Albany to Ft. Worth over the lines of the defendant companies, and this was objected to on the ground there was no evidence of a 24-hour delay on which to base such hypothetical question. The statement submitted by appellant under the assignment presenting this question shows that no such testimony was before the court, and it was therefore error to permit the witnesses to testify as they did. Every hypothetical question to an expert should, of course, be based upon a supposed case finding support in the testimony. St. L. & S. F. Ry. Co. v. Deane, 152 S. W. 527.

The witness Walter Morris was permitted to testify for the appellees, in which he detailed a conversation with the conductor of the train carrying the cattle in question. He said:

"The conductor told me that the rules of the company were that 800 ton was the minimum for a through freight, and a 1,200 tonnage for a Red Ball freight. The conductor told me that he had over 1,200 tonnage all Red Ball stuff."

According to the statement submitted by appellant there is nothing in the record to show that the conductor had authority to bind the company with respect to the matter involved in this conversation, and the court, therefore, erred in permitting the testimony. St. L., I. M. & S. Ry. Co. v. Carlisle, 34 Tex. Civ. App. 268, 78 S. W. 553. This same witness, Morris, was permitted to detail another conversation with the conductor concerning the sending and receiving of a message to and from the chief dispatcher of the Texas & Pacific Railway Company, which was pure hearsay,...