Texas & P. Ry. Co. v. Donovan

• Decision Date: 25 October 1893
• Court: Texas Court of Appeals
• Parties: TEXAS & P. RY. CO. v. DONOVAN et al.

23 S.W. 735

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

Court of Civil Appeals of Texas.

October 25, 1893.

Appeal from district court, Howard county; William Kennedy, Judge.

Action by P. J. Donovan & Co. against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. G. Bidwell, for appellant. G. W. Walthall and S. H. Cowan, for appellees.

STEPHENS, J.

Appellees sued to recover damages for delay and other negligence attending a shipment of sheep from Toyah, Tex., to Chicago, Ill. The shipment was made over appellant's road under a contract with John C. Brown, receiver. Appellant was held liable for the negligence occurring during the receivership, on the ground that current earnings far in excess of appellees' claim had been applied by the receiver in betterment of the road, which was never sold out, but turned back to appellant. The material allegations of appellees' petition, both as to negligence and as to the liability of appellant therefor, were sustained by the evidence. The verdict of the jury imports such a finding, and, as no complaint is made of the insufficiency of the proof, it must be held conclusive of the facts alleged.

The second and third errors are not well assigned, and hence we need not consider the several propositions submitted thereunder. The second complains that there was error in sustaining the special exceptions to defendant's answer, of which there were nine, and some of them at least, if not all, were well taken. Railway Co. v. Johnson, 76 Tex. 421, 13 S. W. Rep. 463; Boggs v. Brown, (Tex. Sup.) 17 S. W. Rep. 830. The third complains of the refusal of special charges numbered from 1 to 4, inclusive. These special charges related, some to the measure of damages, some to the delay occasioned by the alleged abandonment of the sheep in transit on the part of appellees, and some to liability of appellant as restricted to injuries occurring on its own line. Besides, in so far as they contained correct propositions of law applicable to the facts of this case, they seem to have been given in the main charge. On the insufficiency of these two assignments, see Cannon v. Cannon, 66 Tex. 682, 3 S. W. Rep. 36; Freiberg v. Johnson, 71 Tex. 564, etc., loc. cit., 9 S. W. Rep. 455. The sixth assignment — that there was no evidence to warrant the charge therein complained of — is not sustained by the record.

The only remaining assignment found in appellant's brief is the fourth, reading: "The court erred in admitting the evidence of plaintiff Thos. Voliva, over defendant's objections, as is shown by bill of exceptions on file. The said evidence, so admitted by the court over defendant's objections, was wrongfully admitted, as said witness shows he was in Texas on the days spoken of by him; yet he attempts to give the market value of sheep in Chicago at the time, and does not qualify himself to do so." It appears from the bill of exceptions referred to in this assignment that the witness undertook to state the market value of sheep of the quality shipped, at Chicago, on the 23d, 24th, 25th, 26th, and 27th days of April, 1888, based on his knowledge and memory derived from telegrams received about that time from Chicago, and long since destroyed, and from trade journals containing the prices current, though the witness could not state that the telegrams and journals, which were received almost every day, were received on the very days mentioned. The ground of objection contained in this assignment — that the witness was in Texas on the days spoken of, and attempted to give the market value in Chicago without qualifying himself to do so — seems to imply that the evidence was inadmissible because founded on hearsay. It seems that this ground of objection was untenable. It is laid down by the elementary writers that ...