Texas & P. Ry. Co. v. West Bros.

Decision Date15 January 1919
Docket Number(No. 21-2636.)
Citation207 S.W. 918
PartiesTEXAS & P. RY. CO. v. WEST BROS. et al. WEST BROS. et al. v. ST. LOUIS, I. M. & S. RY. CO.
CourtTexas Supreme Court

Action by West Bros. and others against the Texas & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company and others. There was a judgment on verdict for plaintiffs against the St. Louis road and for the other defendants, both as to plaintiffs and the cross-actions of the St. Louis road against the other defendants, which was affirmed in the Court of Civil Appeals (159 S. W. 142) in so far as favorable to the defendants other than the St. Louis and the Texas & Pacific Companies, as to which it was reversed and remanded, and, to review such judgment, West Brothers and the Texas & Pacific Company bring error. Judgment affirmed in part, and in part reversed and rendered in accordance with the recommendation of the Commission of Appeals.

W. L. Hall, of Dallas, and W. B. Teagarden, of San Antonio, for Texas & P. Ry. Co.

Guinn & McNeill, of San Antonio, for St. Louis, I. M. & S. Ry. Co.

Martin & Martin and L. Old, both of Uvalde, and L. E. Lanier, of Jasper, for West Bros. and others.

SADLER, J.

Writ of error was granted on the petition of the Texas & Pacific Railway Company under the view that the judgment of the district court as to it should have been affirmed. The petition of West Bros. was granted as a matter of course. The whole case is before us for consideration.

In the district court of Uvalde county, West Bros. sued the Galveston, Harrisburg & San Antonio, International & Great Northern, Texas & Pacific, St. Louis, Iron Mountain & Southern Railway Companies, and T. J. Freeman, as receiver of the International & Great Northern Railway Company, for damages to thirteen cars of cattle shipped from Uvalde, Tex., on June 5, 1911, to consignees at the National Stockyards, East St. Louis, Ill.

A jury trial resulted in a verdict and judgment for plaintiffs West Bros., against the St. Louis, Iron Mountain & Southern Railway Company and favorable to the other defendants, both as to the plaintiffs and the cross-actions of the Iron Mountain Company.

On appeal to the Court of Civil Appeals by the Iron Mountain Company, the judgment was affirmed in so far as it was favorable to the G., H. & S. A. and I. & G. N. Railway Companies, and T. J. Freeman as receiver. It was reversed and remanded as to the St. Louis, Iron Mountain & Southern and the Texas & Pacific Railway Companies. 159 S. W. 146.

The plaintiffs sought mainly to recover upon a verbal contract with the agent of the St. Louis, Iron Mountain & Southern Railway Company for the transportation of their cattle from Uvalde to the National Stockyards, East St. Louis, Ill. They alleged that the Iron Mountain Company contracted to accept the cattle for shipment at Uvalde on Saturday and to deliver them at the National Stockyards on the following Tuesday in time for that day's market, and that they would be transported so that they would require only one stoppage in transit for food and water. Charged the other defendants as parties to the verbal contract. Various acts of negligence on the part of each carrier were alleged. It was charged that the cattle were not delivered on the date contracted but were delivered on Wednesday, and that they were stopped twice in transit for food and water. In addition to damages for decline in market value, there were other items of damage alleged, including the loss of an extra "fill," which the cattle would have taken had they only been stopped one time in transit for food and water. They prayed for judgment against the Iron Mountain Company for the full amount of the damage and alternately for their damage occasioned by each carrier.

By an alternative plea, plaintiff set up a written contract of shipment by the Galveston, Harrisburg & San Antonio Railway Company for the transportation of the cattle, charging the other defendants as parties to the written contract, pleaded fully the acts of negligence on the part of each carrier in the shipment, the breach of the contract, and the damages as same were pleaded under the verbal contract. They prayed for recovery of the entire damage against the G., H. & S. A. Railway Company as the initial carrier and in the alternative for damages occasioned by each defendant.

The Iron Mountain Company answered by various exceptions, general denial, and special pleas denying the verbal contract, denying the authority of its agent to make the verbal contract, alleging that, if the contract were made by its agent, it was void, and then sought by cross-actions to recover from each of its codefendants the damages occurring on each of its codefendants' roads in the event judgment should be rendered against it for plaintiffs' entire damage.

The G., H. & S. A. Railway Company answered, in addition to exceptions and general denial, by pleas denying the authority of the Iron Mountain Company or its agent to bind it by the verbal contract of shipment, and alleged that, if it were made, it was void. it sought by cross-action to recover against each of its codefendants the damage occasioned on the road of each in the event judgment should be rendered against it for the whole damage. Each of the defendants set up written contracts covering the shipment and set up the different clauses in the contracts limiting liability to its own line.

Under the disposition which will be made of the case, it is not necessary to recur to the pleadings of the International & Great Northern and the receiver.

The T. & P. Ry. Company, in addition to demurrers and general denial, denied the authority of the Iron Mountain or its agent to bind it by the verbal contract, and alleged that the verbal contract was void and nonenforceable. It also pleaded a written contract with it for the shipment over its line and the limitation of its liability to the damages occurring thereon.

The court, after the evidence was in, at the request of the plaintiffs, instructed a verdict for the G., H. & S. A., the I. & G. N., and the receiver. In his general charge to the jury, he submitted the cause solely under the verbal contract and practically gave a peremptory instruction in favor of the T. & P. Company.

The Iron Mountain Company alone appealed, assigning, among other errors committed on the trial, the error in rendering judgment against it on the verbal contract, asserting that contract to be void. It also complained of the charge of the court in disposing of its codefendants. No motion for new trial or cross-assignments were made by the plaintiffs.

The Court of Civil Appeals, among other things, held that the verbal contract was void. It also denied the right of plaintiffs to recover for the extra "fill" set up under the verbal contract.

The T. & P. Railway Company assigns error in the judgment of the honorable Court of Civil Appeals in remanding the cause as to it. West Bros. complain of the judgment in reversing and remanding the cause as to the Iron Mountain Railway Company.

Opinion.

We are of the opinion that, even though the Court of Civil Appeals may not have been entirely correct in the disposition made by it of the complaint urged by plaintiffs to the brief of the Iron Mountain Railway Company, yet that there are errors apparent on the record and...

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5 cases
  • San Antonio Southern Ry. Co. v. Burd
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    • Court of Appeals of Texas
    • December 13, 1922
    ...226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway v. Cox, 106 Tex. 74, 157 S. W. 745; Railway v. West (Tex. Com. App.) 207 S. W. 918; Railway v. Stark, supra. This being true, the defendants below, other than the initial carrier, were not chargeable with the wh......
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    ......A., T. & S. F. Ry. Co. v. Ohlhausen (Tex. Civ. App.) 272 S. W. 224; T. & P. Ry. Page 263. Co. v. West Bros. (Tex. Com. App.) 207 S. W. 918; St. L., S. F. & T. Ry. Co. v. Henderson Cut Stone Co. (Tex. Civ. App.) 275 S. W. 603. Appellee, having ......
  • St.Louis-San Francisco Ry. Co. v. Herman
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    • Supreme Court of Oklahoma
    • February 19, 1924
    ...... on water. The only authority cited in support of this. contention is T. & P. Ry. Co. v. West Bros. et al., West. Bros. et al. v. St. Louis, I. M. & S. Ry. Co. (Tex. Com. App.) 207 S.W. 918. ... contract with the initial carrier in the shipment of a number. of cars of cattle from Texas to East St. Louis, Ill., that. they would be so handled that they would only be required to. give ......
  • Texas & P. Ry. Co. v. West Bros.
    • United States
    • Supreme Court of Texas
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