author: KEY, C. J.

text:
    PRUSSIAN NAT. INS. CO. v. DALTON.
    (No. 5809.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1917.
    Rehearing Denied Dec. 12, 1917.)
    Appear and Error <§=931(4) — Failure to Submit Issue — Presumption prom Judgment.
    Although the question whether the agent who consented to concurrent insurance was still defendant insurer’s agent was not submitted to the jury, where the case was tried upon special issues, and there was testimony tending to show agency, the presumption is that the judge found such fact before judgment was rendered for plaintiff.
    Error from District Court, McLennan County.
    Suit by Crate Dalton against the Prussian National Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. Williams & Williams and Witt & Saunders, all of Waco, for defendant in error.
   KEY, C. J.

Opposing counsel conceding its correctness, we copy the statement of the nature and result of this suit contained in the brief for plaintiff in error:

“By his second amended original petition plaintiff alleged, in substance, the issuance on April 29, 1912, of a fire policy to Otto Stalley and others by defendant in the sum of $2,500; that thereafter, and before .the fire, plaintiff purchased the property covered by the policy, which on July 27, 1912, was transferred to him by written indorsement; that the property was totally destroyed. on November 11, 1912, by a fire; that he made proof of his loss, and that defendant refused to pay; that the property was originally classified as a concurrent risk, but. that on October 8, 1912, C. B. Roulet, defendant’s agent, classified same as a coinsurance risk, and that plaintiff was thereby authorized to take out additional insurance without notice, so that the riders providing for concurrent insurance were waived; that by its permit for extraordinary repairs defendant waived the effect of the vacancy of the premises; that the defendant by indorsement permitted $20,000 total concurrent insurance; that on November 6, 1912, he notified defendant’s agent, Marshall & Co., that he was going to take an additional $5,000 insurance, and they assented, and this additional insurance was procured, and defendant assented thereto; that on April 29, 1912, Marshall & Co. were defendant’s agents, and they issued this policy; that between such date and July 27, 1912, defendant ceased to do business in Texas and reinsured, and Walter Y. Fort & Co. became agents, but plaintiff knew nothing of this; that at the time he bought the policy being in the 'hands of the sellers he notified Marshall, and they assented; that Walter V. Fort & Co. signed the indorsement of transfer as defendant’s agents, but plaintiff did not know this; that a mortgage clause was attached to the policy, procured through Marshall, and signed by Fort & Co., that Marshall & Co. were notified of the additional $5,000 insurance, making $20,000, and consented, and written consent signed by Fort & Co. was given; that written consent for repairs and vacancy was given;' that, if Walter V. Fort & Co. were defendant’s agents, Marshall & Co. were Fort’s agents to give permits, and were each defendant’s agents, and notice .to Marshall & Co. was notice to Fort & Co. and the defendant; that Marshall & Co. remained the defendant’s agents as to the policy sued on; that plaintiff procured $5,000 insurance, making a total of $25,000, on November 6, 1912, and notified Stribling of Marshall & Co. thereof, which was notice to defendant, and consent was given; that Roulet bulletined this risk as a special hazard, and Marshall and Fort knew that plaintiff could take additional insurance without notice, by virtue whereof defendant is estopped; that .Stribling told him the property was a coinsurance risk, and that defendant is estopped; Stribling told him on September 9, 1912, and Novembe'r 6, 1912, that the property was a coinsurance risk, and that notice of additional insurance was not necessary, and that notice of the last $5,000 insurance was not given on this account; that Hays Brothers had told him, on account of Roulet’s classification, that notice of additional insurance was not necessary; that defendant is estopped from complaining of failure to give notice of additional insurance, and acquiesced in the taking of same, and is estopped from denying liability.
“Defendant answered by general demurrer, special exceptions, general denial, and specially that the plaintiff accepted the policy sued on without objection and held it; that, if the building was classified as a coinsurance risk, it was on account of plaintiff’s fraud; that the policy was void by virtue of additional insurance without notice; that the policy was void on account of a lack of sole ownership, and because the interest of the insured was not truly stated therein ; that the policy became void because of a change in the interest, title, or possession of Orate Dalton in the subject of insurance.
“The case was submitted on special issues, in response to which the jury found in substance:
“(1) That Dalton had a conversation with Davis Stribling between November 5 and 11, 1912, in which he told Stribling that he had ordered an additional policy of $5,000.
“(2) That there was no change in the interest or title of Orate Dalton in the insured property prior to the fire.
“(3) That Crate Dalton was the sole and un conditional owner of tlie property at the time of the fire.
“(4) That the insured property was classified at the time of the fire by O. B. Roulet as a coinsurance risk.
“Plaintiff made a motion for judgment, and defendant made a motion for judgment. Defendant’s motion was overruled. Judgment was rendered for the plaintiff and against the defendant on the answers of the jury to the issues for $1,997.13, with 6 per cent, interest from date of judgment. Defendant duly made motion for new trial. This was overruled, and defendant excepted and gave notice of appeal. Defendant duly made application for a writ of error and filed its bond, and citation was waived. Plaintiff in error comes to this court complaining of the errors committed in the trial of this cause, as evidenced by the following assignments of error.”

Opinion.

Two other suits resulting from the same fire have been brought to this court before, and the main questions presented here were considered and decided in those cases. Reliance Ins. Co. of Philadelphia v. Dalton, 178 S. W. 966. Mechanics’ & Traders’ Ins. Co. v. Dalton, 189 S. W. 771. Tested by the rulings announced by this court in those cases, it is not made to appear that this case should be reversed. True it is the policy contains stipulations forbidding concurrent insurance in excess of a specified amount without the consent of plaintiff in error, but there was testimony tending to show that notice of the excess insurance in this case was given to E. W. Marshall & Co., who consented thereto, and also testimony tending to show that, while their general agency had then been revoked, they were still agents for the plaintiff in error as to the policy here involved. It is also true that the court did not submit such question of special agency to the jury, but, as the case was tried upon special issues, and as there was testimony tending to show such special agency, the presumption of law is that the judge found that fact before judgment was rendered for the plaintiff in the trial court.

Perhaps it is also true that the plaintiff in the court below was entitled to judgment upon the finding of the jury to the effect that O. B. Roulet, who was the state insurance actuary, and who represented the plaintiff'in error, as well as the public, and all other insurance companies, had reclassified the property, and authorized insurance under what is known as the coinsurance plan, instead of the concurrent insurance plan, at the time the additional insurance was procured.

Having heretofore in the cases cited discussed the main questions in this case, we see no necessity for doing so again, and therefore content ourselves with stating, as conclusions of fact, that the testimony supports the several findings of the jury, and the finding, which, as above stated, the judge is presumed to have made. And such being the case, in the absence of material error of procedure, the plaintiff was entitled to recover. Some complaints of that character are presented to this court, but after due consideration they are overruled. The application for a contin-hance did not disclose the exercise of proper diligence.

No reversible error has been shown, and the judgment is1 affirmed.
      <g=^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    MARLIN LUMBER CO. v. SAMUEL HASTINGS CO. et al.
    (No. 5821.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1917.
    Rehearing Denied Dec. 5, 1917.)
    1. Evidence <S=^450(8) — Parol Evidence — Ambiguity in Contract.
    Contract for sale of car of corn, evidenced by letters and. telegrams, held ambiguous, leaving it uncertain as to wbat was meant by the words “delivered” and “inspection allowed.”
    2. Sales <®=s>88 — Ambiguous Contract — Question for Jury.
    Both parties introducing testimony tending to show the meaning, according to commercial usage, of the words “delivered” and “delivery,” in an ambiguous contract for sale of a car of corn, defendant, whose testimony on that subject tended to show that title remained in plaintiff when the corn was injured, and that on account thereof he was not required to accept and pay for the com, had a right to have the issue submitted to the jury.
    3. Evidence >®=>21S(3) — Admission—Letters.
    Defendant may introduce letters written by plaintiff after the making of their ambiguous contract, where they tend to show that plaintiff then construed it as defendant claims it should be construed.
    4. Customs and Usages ⅞=»15(2) — Explanation of Contract.
    A contract for sale of ear of corn being ambiguous -as to meaning of words “inspection allowed,” therein, testimony as to meaning attached thereto among shippers and buyers of carload lots, when used in such a contract, is admissible.
    Appeal from District Court, Palls County; Richard I. Munroe, Judge.
    Action by Samuel Hastings Company against the Marlin Lumber Company and others: Prom an adverse judgment the named defendant appeals.
    Affirmed in part, and in part reversed and remanded for new trial.
    Spivey, Bartlett & Carter, of Marlin, for appellant. Davis & Cocke, of Waco, for ap-pellee Samuel Hastings Co. Scott & Ross, of Waco, for appellees St. Louis S. W. Ry. Co. of Texas and St. Louis S. W. Ry. Co.
   KEY, C. J.

We copy from appellant’s brief the following statement of the nature and result of this suit:

“This suit was filed in the district court of Palls county by . Samuel Hastings Company against the Marlin Lumber Company and the International & Great Northern Railway Company, plaintiff alleging that it was a corporation engaged in the wholesale grain business at Cairo, Ill., and the Marlin Lumber Company was a corporation engaged in retail lumber and grain business at Marlin, Tex., and that by telegrams and letters exchanged between plaintiff and defendant Marlin Lumber Company, on the 20th and 21st of November, 1913, plaintiff contracted to sell to defendant Marlin Lumber Company a carload of corn, to be delivered to said defendant at Cairo, Ill.; that on the 22d of November, 1913, plaintiff made delivery of said car of corn by delivering same to the St. Louis Southwestern Railway Company at Cairo, Ill.; that defendant Marlin Lumber Company was indebted to plaintiff in the sum of $581.41, the agreed price for said corn, and asked judgment in said amount, with legal interest from December 1, 1913; and said plaintiff in the alternative asked for judgment against the International & Great Northern Railway Company in the event it should not be entitled to a recovery against the Marlin Lumber Company, alleging that said railway company negligently permitted the value of said carload of corn to be destroyed.
“On the 1st day of December, 1915, the defendant Marlin Lumber Company filed its amended answer and cross-action, pleading general denial; and specially pleading that the contract with plaintiff provided that said carload of com was to be delivered at Eloise, a station on the line of the International & Great Northern Railway Company, in Falls county, Tex.; ■that said contract provided for inspection by said defendant before acceptance; that the defendant Marlin Lumber Company inspected 'said carload of corn at the first practical opportunity, and found the corn in said car rotted and sprouting and unfit for use, said condition being partially due to the corn having been loaded in a car with a leaky roof, permitting rainwater to fall on and soak into said corn, and partially due to flood waters overflowing the tracks of the International & Great Northern Railway Company and soaking into the lower portion of said ear of corn; and that the defendant Marlin Lumber Company promptly rejected said ear of corn and declined to accept same, and so notified plaintiff. In the alternative, and in the event plaintiff should recover judgment against it, the said defendant Marlin Lumber Company asked judgment over against the defendants International & Great Northern Railway Company, St. Louis .Southwestern Railway Company, and the St. Louis Southwestern Railway Company of Texas, alleging the destruction of the value of said carload of corn by reason of negligent acts of said defendant railroads in loading and transporting said corn in a car with a leaky roof, and in permitting said car to be damaged by flood waters.
“The case was tried at the June term of the district court of Falls county, 1916, before a jury. At the conclusion of the evidence the court instructed the jury to return a verdict in favor of the plaintiff against the defendant Marlin Lumber Company, and in favor of the defendants International & Great Northern Railway Company, St. Louis Southwestern Railway Company, and the St. Louis Southwestern Railway Company of Texas, against the defendant Marlin Lumber Company, which was done, and judgment entered in accordance therewith. The defendant Marlin Lumber Company’s motion for new -trial was overrule^ on July 27, 191⅝ to which action of the court said defendant excepted, and gave notice of appeal. * * *
“The negotiations between the plaintiff and this defendant were carried on by means of tele-grams_ and letters. On November 13, 1913, plaintiff wrote Marlin Lumber Company, referring to corn in carload lots, as follows:
“ ‘The price will never be as low again this season — only 88‡ per bushel of 72 lbs. for choice, heavy ear corn in shuck delivered to points in Texas Group Three, for promp shipment. After the corn has once gone into storage, nothing short of a substantial premium will induce the owner to load it out.
“ ‘Terms: Arrival draft, inspection allowed, and destination public weigher’s sworn weights protected within 2% of invoice. If we were not fully equipped to obtain accurate weights, these terms would be out of the question.
“ ‘Owing to the scarcity of cars and the prospect of an early advance, we are obliged to request wire acceptance, and shipping instructions to accompany orders. Tours very truly, ‘Samuel Hastings Company.’
“On November 20, 1913, this defendant sent plaintiff the following telegram:
“ ‘Samuel Hastings Co., Cairo, Ill. If snapped corn quoted is dry, sound and heavy, ship one car to Eloise. Texas, your price delivered eighty-eight cents inspection allowed. Wire answer to-morrow.
“ ‘Marlin Lumber Company.’
“On November 21st plaintiff telegraphed Marlin Lumber Company as follows:
“ ‘Marlin Lumber Company, Marlin, Texas: Booking car snapped corn Eloise arrival draft our weights govern. Sam’l Hastings Co.’
“On the same date plaintiff wrote this defendant the following letter.
“ ‘November 21, 1913.
“ ‘Marlin Lumber Company, Marlin, Texas— Gentlemen: Herewith confirmation covering-the sale to you of one car’ of ear corn in shuck, for shipment to Eloise, Texas, freight prepaid. Terms: Arrival draft, buyer paying exchange, inspection allowed, our weights to govern settlement, you to assume responsibility of pilferage or mishandling at destination. Please note care-. fully these terms, and be advised that we will not deviate therefrom. ⅜ ⅜ *
“ ‘Samuel Hastings Company.’
“The confirmation referred to as being inclosed in said letter is as follows:
“ ‘Marlin Lumber Company Marlin, Texas: This confirms the sale to you by exchanged wires of to-day as follows: Cars 1 Packages Bulk Size Medium size car,' Grade and Kind Good Corn (in shuck), Price 889 Freight prepaid Eloise, Texas, Shipment promptly, Route I. & G. N. R. R. Dely. Terms: Strictly net cash; bills payable immediately on arrival of shipment at destination. Inspection allowed. Our weights to govern. * * ⅜ If the above is not correct, advise us immediately. Failure to do so will be understood as acceptance of this contract. Yours truly,
“ ‘Samuel Hastings Company.’
“On November 22, 1913, plaintiff wrote this defendant the following letter:
“ ‘Marlin Lumber Company, Marlin, Texas— Gentlemen: Herewith invoice covering car of ear corn, in shuck, shipped on your order to Eloise, Texas, freight prepaid. This shipment is moving over the Cotton Belt from Cairo and will be delivered to the I. & G. N. R. R. at Waco. * ⅞ * Please have your customer in readiness to receive on arrival at destination, as we will not be responsible after shipment arrives, and draft is payable immediately upon arrival and inspection of the shipment. Yours truly, 'Samuel Hastings Company.’
“On the same date plaintiff wrote the First National Bank of Marlin, Tex., as follows:
“ ‘Gentlemen: Herewith for collection and remittance, our draft No. 6804, amount $581.41, on Marlin Lumber Company, your city. Present promptly, and if paid on demand, you may deduct exchange from amount collected. If customer requests you to hold for arrival, please add exchange, and remit face value of draft, in funds payable at par here. Where we carry the value of the goods while in transit, and assume all the risks consignee should not object to paying your exchange. Do not release any papers, or allow any deductions, unless specifically authorized] by us. If payment is refused, hold papers and ask us for instructions. Very truly yours,
“ ‘Samuel Hastings Company.’-
“Plaintiff introduced the deposition of W. L. •Duncan, its traffic manager, who testified in part as follows: Tnt. No. 6. There is a universal understanding between the shippers of grain and regular receivers thereof that the meaning of the term “delivered” merely signifies that the shipper shall pay the carrier the expense of transportation of the property to the destination dlesignated by the purchaser, and include the amount of the freight charges so paid in the bill against the purchaser, or, where freight charges are not prepaid by the shipper, , an allowance to cover the same is made on the bill to purchaser, and a draft is made on the purchaser for the balance . of the bill, payable on arrival of the property at destination, unless otherwise agreed. Int. No, 7. The term “delivered,” used, in the contract for the car of corn between Samuel Hastings Company and the Marlin Lumber Company, meant that Samuel Hastings ■ Company were to prepay the freight charge on the car of corn from Cairo, Ill., to Eloise, Tex., for account, of the Marlin Lumber Company, and bill on the Mar,lin Lumber Company for the value of the corn in full, without freight deduction of any kind. The car of corn was billed by me direct to the Marlin Lumber Company, Eloise, Tex., and| draft for the value thereof was mailed to the, First National Bank, at Marlin, Tex., with instructions to present and collect from the Marlin Lumber Company the amount of the bill for the car of com. The Marlin Lumber Company did not pay the draft on arrival of the shipment at destination, nor at any time thereafter, and have not since made any payments thereon to the. Samuel Hastings Company.’
“The defendant Marlin Lumber Company introduced the testimony of L. A. Robinson, who testified, in portion as follows: ‘I would take it for granted that, when a person bought a car of grain to be delivered at a certain point, the grain would become the property of the shipper until delivered at the point — to the shipper or the carrier; anyway, it would not belong to the purchaser. I do not think the word “delivered” merely signifies that the shipper shall pay the earlier the expense of the transportation of the property to the destination. I am familiar with the use, in shipments of grain in carload lots, of the term “inspection allowed” ; that is a term that is frequently used. I would take it to mean that the party who shipped the car of corn with the privilege of inspection, that the purchaser could inspect the car of corn, and after his inspection, if it was suitable, he would pay for the corn, which would become his property. If it would not be what he considered what he bought, he would! reject it and it would then remain the property of the seller.’ And on this point defendant’s witness C. B. Monday testified as follows: T said I had been engaged in the grain business for twelve or fourteen years. I have had experience in the shipment of grain in carload lots. . I am acquainted with the custom amongst dealers as to the use of the word “delivered” when used in connection with the shipment of a carload of com from one railroad point to another railroad point. The use of the word “delivered” means delivered at the point where the buyer lives, by the shipper or seller. The use of the word “delivered” does not merely mean that the freight is to be paid by the seller. It means that they are to get the goods there and deliver them there to you, aad| then when they are delivered you are to pay for them.’ And Fred E. Hailey, a defendant’s witness, testified as follows: T am familiar with the use of the word “delivered” when used in connection with the shipment of grain in carload lots by grain dealers. It means delivered at destination. I can say this: That if that car of corn reached Eloise, was inspected by us, and was sound, dry, and heavy, then we would] receive it and pay for it. Otherwise, we would not. The corn, in the condition in which we saw it, could not be handled by us at all.’
“Plaintiff introduced in evidence a portion of this defendant’s answer as follows: ‘The car of corn in question arrived at the 'station of Eloise on December 1, 1913. Said overflow came into said car of corn on December 3, 1913, and defendant was not able to reach same or to inspect same until about 15 days thereafter, when said com had been heated, spoiled, and rotted so as to be unfit for any purpose, and was a total loss.’ ‘Marlin Lumber Company is a private corporation, * * s having its domicil and place of business at Marlin, Falls county, Tex.’
“Emil Meir, a witness for this defendant, testified as follows: ‘Sly name is Emil Meir. I live at Eloise. I remember the occasion of the overflow in December of 1913.' I was in part of it. That overflow was at its height on-Thursday at about 1 o’clock or 12 o’clock, something like that. The overflow began coming out on Wednesday. The roads were impassable on Monday. According to Monday, that Thursday would be the fourth of the month, and that Wednesday would' be the third. ⅜ * * As I have said before, the roads on Monday were muddy and impassable to wagons, and from that time on the conditions got worse. * * * . It takes 45 cents to go from Marlin to Eloise. That would be about 15 miles.’
“Albert Tomlinson, a witness for this defendant, testified as follows: ‘I recollect the big overflow of December, 1913. I think it occurred about the 2d day of December, on Thursday. I lived light close to the mouth of Deer creek. The mouth of Deer creek is pretty near west of Marlin. I do not know exactly how far that is from Eloise. It had been raining several days prior to that time. * ⅜ *' On Monday it rained all day long and still raining. * * * Monday night I believe the river came out. Wednesday it was at its highest.’
“R. O. Peacock, a witness for defendant, testified as follows: ‘Highbank is about two or three miles from Eloise. * * * I was at Highbank during the overflow of 1913. It was raining all the time for several days before the overflow, until the water got out over the country. The roads were bad. For three or four days before the time that the river came out there was no traveling only by rail. On the 3d day of December it got out the highest. For three or four days before that the creeks were all high and the roads were impassable.’
“C. B'. Monday, a witness for defendant, testified that he wrote and mailed to the I. & G. N. agent at Highbank the following letter:
“ ‘1st December, 1913.
“ ‘Agent, I. & G. N. Ry. Co., Highbank, Texas —Dear Sir: We have en route from Cairo, Ill., shipped to the order of Samuel Hastings Co., notify us, the following: Car P. & L. B. No. '31398, Ear corn, Frt. Paid, Eloise, Texas. Car NYC No. 52766, Ear Corn, Frt. Collect $106.34, Highbank. Please notify us by telephone, our expense, immediately on arrival of each of the above cars. Thanking you in advance for your attention, we are yours very truly, Marlin Lumber Company, Per -.’
“ ‘The first information or notice I had about the car of corn was when Agent Heffner at the I. & G. N. office called me up late one afternoon in the latter part of December, and stated that he had a car of corn there with a certain initial and number, and that it had been through the flood, and to come down and take charge of it and empty the car, or words to that effect. * * * I received notice that that car of com was there late in the afternoon of the nineteenth of December. * ⅜ * I went inside of the car, and the first thing I saw was green sprouts and badly wet corn. * * * We rejected the car.’
“On December 20, 1913, the Marlin Lumber Company sent Samuel Hastings Company the following telegram and letter:
“ ‘Western Union — Western Union — Day Letter. Form 2589 B. Theo. N. Vail, President. Beceived at 39CHAM 43 BL Marlin, Texas, Dec. 20-13. Sam. Hastings Co. Cairo, Ill. Car. P. L. ID. thirty-one thirty nine eight on track here in Marlin wet and badly damaged after inspecting same are forced reject car. IGN Agent reports car in recent floods and we were not notified of car until yesterday.
“ ‘Marlin Lumber Co. 1234 P. M.’
‘‘This indorsement is stamped on the face of this exhibit: ‘Original delivery made by telephone to Duncan at - by AX 1242.’
“ ‘Marlin, Texas, 20th December, 1913.
“ ‘Sam’l Hastings Co., Cairo, Ill — Dear Sir: We have just wired you the following day letter and which we now confirm: “Car PLE thirty one thirty nine eight on track here in Marlin; wet and badly damaged; after inspecting same we are forced to reject the car. I. & G. N. reports the car was in recent floods and we were not notified of the car until yesterday.’
“ ‘We presume that you have noticed reports in the daily press of the extremely high water and consequent flooded conditions of the river bottom lands throughout our state and the resultant damage and loss which has been quite heavy. Regretting the necessity of the above action, we are, yours very truly,
“ ‘Marlin Lumber Company,
“‘Per C. B. Monday.’”

Opinion.

We sustain appellant’s first and second assignments of error, which complain of the action of the trial court in peremptorily instructing a verdict for appellees.

The contract was evidenced by letters and telegrams, which passed between the plaintiff, Samuel Hastings Company, and the defendant Marlin Lumber Company, who is appellant in this court. Considering all of the instruments referred to, we are of the opinion that the contract was ambiguous, and left it uncertain as to what was meant by the word “delivered” and the expression “inspection allowed.” Both sides introduced testimony tending to show the meaning of the words “delivered” and “delivery” according to commercial usage; and therefore appellant had the right to have that issue submitted to the jury, because appellants testimony upon that subject tended to show the title to the property was in the plaintiff, and not in the appellant, at the time it was damaged, as shown by the testimony, and that on account of such damage appellant was not required to accept the corn and pay for it.

We also sustain the third assignment of error, and hold that appellant had the right to introduce the letters therein referred to and written by the plaintiff, because, although written subsequent to the date of the contract, they tended to show that the

plaintiff had at that time construed it as contended for by appellant.

Appellant’s fourth assignment is also well taken, and the court should not have excluded the testimony offered by appellant for the purpose of showing the meaning attached to the words “inspection allowed” among shippers and buyers of carload lots of grain, when used in contracts for the sale of grain in carload lots.

Counsel for Samuel Hastings Company have filed a brief pointing out certain facts which tend to show that the shipment of grain belonged to appellant at the time it was injured, but the evidence referred to does not conclusively establish that fact, and therefore that was an issue which appellant had the right to have submitted to a jury. There was no testimony which would have justified the court in submitting to the jury any issue against the St. Louis Southwestern Bailway Company and the St. Louis Southwestern Bailway Company of Texas, and the judgment in their favor will be affirmed.

As tending to support the conclusions reached by this court, we cite Roberts v. Short, 1 Tex. 373; Gardner v. Watson, 76 Tex. 29, 13 S. W. 39; Berry Bros. v. Fairbanks-Morse & Co., 51 Tex. Civ. App. 558, 112 S. W. 428; Fort Produce Co. v. Dissen, 45 Tex. Civ. App. 403, 101 S. W. 477; Hall & Brown v. W. H. Brown, 82 Tex. 469, 17 S. W. 715; Wootters v. Kauffman, 67 Tex. 492, 3 S. W. 465; Craig & Ogden v. Marx Kempner, 65 Tex. 654.

This disposes of all the questions presented by the appeal, and the result is that the judgment of the trial court in favor of the St. Louis Southwestern Bailway Company and the St. Louis Southwestern Kailway Company of Texas is affirmed; but as between the other parties, and in all other respects,- the judgment is reversed, and the cause remanded for another trial.

Affirmed in part. In part reversed and remanded.
      <S=s>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    PANHANDLE & S. F. RY. CO. et al. v. CRAWFORD.
    (No. 1229.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1917.
    On Motion for Rehearing, Dec. 5, 1917.)
    1. Tbial <S==>352(1) — Carriage ox Live Stock —Special Issues — “Bbasonabus Time.”
    In an action for damages to a shipment of cattle through delay in transit, where the court, in its main charge, in connection with the submission of special issues,. instructed that the duty of defendant roads in regard to the cattle was to use ordinary care in loading, forwarding, and transporting them, etc., the special issues whether defendants transported the cattle within a reasonable time after they were received by defendants for transportation were not erroneous as imposing an absolute duty on the roads to transport the shipment within a reasonable time; it being reasonably clear from the other instructions that the term “reasonable time” in the special issues meant such time as that in which the railroads in the exercise of ordinary care should have completed the transportation.
    [Ed. Note. — Eor other definitions,, see Word® and Phrases, Eirst and Second Series, Reasonable Time.]
    2. Tut at. @=>352(5) — CARRIAGE OB HIVE Stock — Special Issues.
    In such action, where the court charged that issues should not be considered unless it should first be found under the special issues submitted that the cattle were not transported within a reasonable time, the submission of such issues, as whether the cattle lost any more in weight than .they would have lost had they been transported and delivered within a reasonable time, was not erroneous on the ground that the issues assumed the cattle were not transported within a reasonable time.
    3. Carriers @=3210 — Carriage oe Live Stock — Duty to Furnish Facilities eor Unloading — Interstate Commerce Act.
    Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 1 (2), 24 Stat. 379 (U. S. Comp. St. 1916, § 8563[2]), the duty of railroads carrying cattle to furnish the facilities necessary for unloading and delivering them is nondelega-ble, and if agents. are employed to perform it the liability remains the same.
    4. Appeal and Error @=>909(1) — Carriage oe Live Stock — Assumption oe Matter oe Fact in Absence oe Evidence.
    In an action for damage to a shipment of cattle from delay in transit, in the absence of evidence to show that delivery of the cattle was accepted by the consignee on the cars at destination and that the stockyards company acted for the consignee in unloading, the Court of Civil Appeals cannot assume that the stockyards company in unloading was not performing one of the duties of transportation incumbent on the carriers.
    5. Carriers @=3230(8) — Carriage oe Live Stock — Instruction.
    In an action for damage to a shipment of cattle from delay in transit, the charge that the responsibility of the railway company ceased when the cattle were delivered to- the stockyards company at destination and unloaded into its pens was as favorable as defendant railroads could ask, in the absence of evidence to show that delivery was accepted by the consignee on the cars at destination, and that the stockyards company acted for the consignee in unloading the shipment.
    6. Trial @=3252(7) — Instruction — Evidence.
    The evidence and issues submitted having ao reference to any depreciation caused by an extraordinary run of cattle and the crowded conditions of the pens at destination, an instruction that the jury should not consider any damage resulting on account of an unusual run and such crowded conditions was properly refused.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Action by J. P. Crawford against the Panhandle & Santa F6 Railway Company and •others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellants. Mathes & Williams, of Plainview, for appellee.
   BOYCE, J.

Appellee, Crawford, recovered damages in the court below against appellant railway companies, for negligent delay in the shipment of 562 head of cattle belonging to appellee, shipped from Plain-view, Tex., to Kansas City.

The case was submitted on special issues, the first issue being as follows:

“Did the defendants transport plaintiff’s cattle to and deliver them at Kansas City within a reasonable time after said cattle were received by defendants for such transportation?”

Following this issue, successive issues were submitted requiring the jury to determine and answer as to the loss in weight and market value per pound of the eattle in excess of what it would have been if they had been transported and delivered at Kansas City within a reasonable time. The appellants assign error as to this manner of the submission of the issues of liability, because the true basis of liability would be whether the carrier exercised ordinary care to transport the cattle within a reasonable time, and, as they assert, the effect of the charge was to impose an absolute duty upon them to transport the shipment within a reasonable time and made the carriers liable, irrespective of any negligence. The court, in its main charge, in connection with the submission of the special issues, instructed the jury that the duty of the defendants in regard to plaintiff’s cattle was to use ordinary care in loading, forwarding, and transporting them; that defendants were not required to transport the cattle on any particular train, nor deliver them in time for any particular market, and, unless the jury should find that defendants did not use ordinary care to load or transport the cattle within a reasonable time, the first special issue should be answered in the affirmative. The court also gave several instructions requested by the defendant in respect to the specific delays charged, to wit, a delay in loading, a delay at feeding point en route, and a delay caused by engine failure, in which the jury were specifically charged as to appellant’s theory of its liability for such acts. At the request of the appellants, the court also submitted two special issues: First, as to whether there was a negligent delay in the loading of the cattle at Plainview; to which* the jury replied that there was such delay of 5 hours and 40 minutes. And, second, whether there was a negligent delay at the feeding point en route; to which the jury replied that there was such delay of six hours. It appears reasonably clear from these instructions that the court, by the use of the term “reasonable time,” meant such time as that in which the railway companies, in the exercise of ordinary care, should have completed the transportation, and the jury evidently so understood it. We therefore overrule the first and second assignments.

The court submitted several issues, of which the following is a fair illustration:

“Did plaintiff’s cattle lose any more-in.weight than they would have lost in weight if they had been transported to and delivered at Kansas City within a reasonable time after they were received by defendant for such transportation?”

The appellants objected to the submission of these issues on the ground that it was assumed therein that the cattle were not transported within a reasonable time. The submission of these issues was preceded by an instruction that they should not be considered unless it should be first found under the first issue submitted that the cattle were not transported within a reasonable time. Under such circumstances, we did not think there was any error in this manner of submitting these issues.

The record shows that the stock pens, including the unloading chutes at Kansas City, are owned and operated by the Kansas City Stockyards Company, an independent corporation ; that upon arrival of stock at Kansas City the railway company places the cars at the unloading chutes, and the stockyards company unloads the cattle in small pens, and where they are consigned to a commission company selling cattle on the Kansas City market, as the cattle in this shipment were, the stockyards company delivers these cattle from these unloading pens into the respective pens usgd by the commission company, which pens are also owned by the stockyards company. It is also shown that this has been the custom of handling cattle consigned to commission firms at Kansas City for many years, though the record is silent as to who pays the stockyards company for these services. The evidence shows that the cars containing these cattle were placed by the railway company at the stockyards at 4:15 a. m., and they were all unloaded by 7:15 a. m. The court, at appellants’ request, instructed the jury:

“That the duty of the defendant railway companies ceased when they delivered plaintiff’s' cattle to the Kansas City' Stockyards Company, and said cattle were unloaded> into the pens of the Kansas City Stockyards át Kansas City, Mo.”

Appellants complain of the action of the court in refusing to instruct the jury that the liability of defendants ceased when they delivered the cattle at the unloading chutes, and any delay in unloading the cattle‘from the cars at Kansas City should not be charged to the defendants. The duty of the railway company to make delivery of the shipment at Kansas City, and in order to do this furnish the facilities necessary for the unloading and delivery of the cattle, is a part of the “transportation” of an interstate shipment under section 1 (2) of the Interstate Commerce Act, which provides that:

“The term ‘transportation’ shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership, or of any contract, express or implied, for the use thereof and all service® in connection with the'receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and the handling of property transported.”

This duty is nondelegable, and, if other agents are employed by the carrier to perform it, the liability would remain the same. Section 1, Interstate Commerce Act; section 856S (2), West Publishing Company’s Compiled Statutes of the U. S., vol. 8, p. 9081; Covington Stockyards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 461, 35 L. Ed. 73; Mo. Pac. Ry. Co. v. Haynes, 72 Tex. 175, 10 S. W. 398; Hutchinson on Carriers, § 510; Panhandle & Santa Fe Ry. Co. v. Jim Phillips, 197 S. W. 1031, recently decided by this court, the opinion being not yet published.

In the absence of any evidence to show that delivery of the cattle was accepted by the consignee on the cars at Kansas City and that the stockyards company was acting for the consignee in unloading the shipment, we cannot- assume that the stockyards company in unloading the cattle was not performing one of the duties of the transportation incumbent upon the carrier. We think the charge given was as favorable as the appellants could ask, and overrule their fourth, fifth, sixth, and seventh assignments.

The eighth assignment complains of the refusal of the court to give an instruction to the effect that the jury should not consider any damage or loss resulting on account of an unusual run of cattle on the Kansas City market, and crowded condition of the pens of the stockyards company, which existed at the time of the arrival of their cattle at Kansas City. Appellee’s complaint was that the weight and appearance of his cattle were depreciated by the delays in transportation, which resulted in depreciation of their market value. Testimony was introduced and issues submitted as to this delay and the resultant damages. The evidence and issues submitted had no reference to any depreciation caused by the extraordinary run of cattle and the crowded condition of the pens at Kansas City, and there was nothing in the record that would require the submission of this requested charge.

The evidence is sufficient to support the verdict of the jury, and we overrule the ninth and tenth assignments, which complain of the verdict of the jury.

Affirmed.

On Motion for Rehearing.

Appellants, in their motion for rehearing, insist that we again review the record in this case, particularly in connection with their fourth, fifth, sixth, and seventh assignments, and we have done so.

Our general statement of the method of delivery of stock aj Kansas City is correct. There is some little conflict in the evidence as to whether the consignee commission corn-pany receives the stock at the unloading pens or at their own pens. This conflict is not material in this case, because all the evidence agrees that delivery to the consignee commission company is not made until .after the stock are unloaded by the stockyards company into its unloading pens. The following is an explanation of -the method of handling stock at Kansas City, as given by one of appellant’s witnesses:

“The method usually and ordinarily pursued in unloading live stock from the railroad cars on arrival at the stockyards and in handling said cattle from the unloading pens to the pens of the commission houses is that the railroad company turns them over to the stockyards company, who ■ releases them, to the yard men employed by the various commission firms, who deliver them to the commission firms’ pens, where they are taken care of until sold and weighed by' the commission firms. * * *
The ordinary and usual course by which the commission houses are notified of the arrival of shipments at the Kansas City Stockyards is that the stockyards company posts a notice, giving the arrival of shipments consigned to the various commission firms, and this was practiced in connection with this shipment of cattle.”

The case presented by the record is not that of the carrier placing cars on industry-tracks at the warehouse of the consignee and for his convenience. It is not shown that the defendant railway company has any stock pens of its own at Kansas City from which it may make delivery of stock. The record tends to show, and we assume, that the facilities for unloading and handling stock at Kansas City are furnished by the stockyards company, and the shipper does not appear to have any choice as to whether delivery shall be made through this medium. The furnishing of these facilities giving notice of the arrival of the shipments and unloading the cattle so that delivery may he made to the consignee is, as we have before said, a part of the transportation for which the carrier is responsible. We are still of the opinion that the charge of the court that the responsibility of the railway company ceased when plaintiff’s cattle were delivered to the Kansas City Stockyards Company and unloaded into the pens of said company was as favorable as appellants could ask.

The motion is overruled.
      fónaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: RAINEY, O. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McCALISTER.
    (No. 7830.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.
    Rehearing Denied Dec. 8, 1917.)
    1. Trial @=>260(10) — Instbuctions — Re-
    quests CoVEKED BY INSTRUCTIONS GIVEN. In an action for injuries no claim was made for pain and suffering caused by biliousness or cold about eight months after the accident, but a physician testified that when he examined plaintiff at that time he was suffering' from a bilious attack due to cold. The court refused an instruction that the jury could not find for plaintiff for pain and suffering caused by his having a bilious attack and a cold, at the time he was attended by such physician, the evidence not showing that it was the proximate result of the injury, and it appearing that it could not have been caused by the accident, but the court did charge that the jury should allow plaintiff such sum as would reasonably compensate him for the injuries which the evidence might show were the direct and proximate result of defendant’s negligence, and that they might consider any physical pain which the evidence showed he suffered as the direct result of such negligence. Reid, that the charge given practically embodied the matter embraced in the special charge.
    2. Appeal and Error @=1068(4) — Harmless Error — Instructions—Core by Verdict.
    The refusal of the requested instruction, if error, was harmless, where there was no complaint that the verdict was excessive.
    3. Appeal and Error @=882(15) — Invited Error — Reeusal op Instructions.
    In an action for injuries sustained by a railway section hand when the motorcar on which he was riding ran into an open switch, the court, at defendant’s request, charged that 1 if plaintiff was negligent in failing to keep a proper lookout, and his negligence proximately contributed to, the injury) then if he was injured by defendant’s negligence in leaving the switch open his damages should be diminished in proportion to- the amount of negligence at; tributable to him. It refused to charge that if he was guilty of negligence in not keeping a proper lookout in approaching the switch at a high rate of speed, and such negligence was the proximate cause and the sole proximate cause of the injury, the verdict should be for defend‘ant. Reid, that the court having given one special charge on the subject at defendant’s request, defendant could not complain of the refusal to give another on .the same subject.
    4. Trial '@=251(8), 252(11) — Instructions— Applicability to Pleadings and Evidence.
    In such action, an instruction that the defense of assumed risk was not available, where the employé had an opportunity before being injured to inform the employer or a superior intrusted with authority to remedy or avoid the danger, and did notify the employer or superior, provided -it was not necessary to give such notice when the employer or the superior already knew of the danger, and that the defense was not available where a person of ordinary care would have continued in the service with knowledge of the danger, though the servant or employé did not give notice of the danger, while stating a correct proposition of law, was erroneously given, as it was not applicable under the pleadings and the evidence.
    5. Appeal and Error @=1066 — Harmless Error — Inapplicable Instructions.
    The giving of such instruction, though error, was harmless, as there was nothing in it calculated under the evidence to influence the jury in reaching a verdict.
    6. Master and Servant @=291(3) — Trial @=296 (3) — Instructions—Misleading In-
    . structions — Cure.
    In an action for injuries sustained by a railway section hand when the motorcar on which he was riding ran into a switch left open through the negligence of another employé, the court charged that railway corporations were liable to any employé whose injury resulted from the negligence of the officers, agents, or employés of such company, or from the defect or insufficiency, due to its negligence, in its cars, appliances, machinery, or other equipment. Reid, that while the portion of the instruction relative to defects or insufficiency in the cars, appliances, machinery, or equipment was not applicable to the case, it was not misleading, where the evidence was uneontradicted that plaintiff was thrown from the motorcar and that defendant was chargeable with negligence, and in applying the law to the fact the court only authorized a recovery because of the derailment and the open switch, and did not submit the question of negligence because of defective machinery.
    Appeal from District Court, Henderson County; C. D. Owen, Judge.
    Action Iby L. McCalister, by next friend, against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, R. S. Neblett, of Corsicana, and W. 'R. Bishop, of Athens, for appellant. E. P. Miller, of Athens, and Or-mond Simkins, of Corsicana, for appellee.
   RAINEY, O. J.

This suit was instituted by appellee against appellant for damages for personal injuries received on October 8, 1915. It was alleged that on said date appellee was working for appellant as a section hand under a foreman; that he with said foreman and other hands were going west on a motorcar on appellant’s main line, traveling 20 or 25 miles per hour, when the car ran into an open switch, causing said car to be derailed, throwing appellee therefrom, by which he received personal injuries, damaging him in the sum of $950; that said switch was negligently left open, etc. Appellant answered by general exceptions,1 general denial, and specially that if appellee was injured it was caused proximately by his own negligence in traveling at a high rate of speed and in not keeping a proper lookout for his own safety. A trial resulted in a verdict for appellee for $500, and judgment was rendered accordingly for that amount, from which this appeal is taken.

The evidence substantially establishes the material allegations of the petition and supports the verdict and judgment.

The first error assigned complains of the court’s refusal to give its special charge, which is as follows:

“You are instructed that in no event can you find for the plaintiff for any sum for any pain or suffering caused by the said McCalister having a bilious attack, and having a cold at the time he was attended by Dr. Beach, the evidence not showing that the same was the proximate result of the injuries complained of ⅛ the plaintiff’s petition, and it appearing that same could not have been caused by his having been thrown from the car”

—for the reason that the-evidence does not show that said bilious attack was the proximate result of the injuries complained of by the plaintiff, and the defendant having requested said charge before the giving of the main charge to the jury and having duly excepted to the refusal of the court to give same as shown by its bill of exception No. 1. The second assignment complains of the refusal of the court to give a special charge embodying the subject embraced in the first assignment, and we will consider the two assignments together.

There is no contention or claim made by appellee for any suffering or pain caused from biliousness or cold. The only evidence that relates to any suffering or pain is that of Dr. Beach, who testified that about eight months after appellee was injured he was called to visit the appellee professionally. He says:

“I was called out there one evening to see him; I went in the house and asked what the trouble was; I found he had a temperature of 101 and he was complaining of shortness of breath or something, and complained of being sore all over. I had him roll over on his back and examined his chest and found he was sore in the chest. I also had him roll over on his breast and examined his back and found he had a scar on his shoulder. The place on his back is not swollen now, that is it don’t feel like it is through his shirt. It was something like two months ago I examined him. He was suffering then with a bilious attack and had a little fever. I judge it was due to cold—that was some eight months after he was injured; I had never been called to see him before, that is after he had been back from the hospital. I never detected anything unusual about his appearance, except he seemed to be sluggish, but then he was that way before he was injured, though he was a pretty good worker.”

The court in his main charge told the jury:

.“If you find for the plaintiff, you will allow him such sum as will reasonably compensate him for the injuries which the evidence may show was the direct and proximate result of defendant’s negligence, if any, and in arriving at the damages you may consider any physical pain, if any, which the evidence may show that plaintiff has suffered as the direct result of said negligence, if any,” etc.

This charge of the court practically em- ' bodies the matter embraced in the special charge, and we find nothing in the record which was calculated to influence the jury in rendering their verdict to include any damages for suffering of pain from biliousness or cold. Besides, there is no assignment com- . plaining of the excessiveness of the verdict, which renders the error in the charge, if error, harmless. Railway Co. v. Boozer, 70 Tex. 530, 8 S. W. 119, 8 Am. St. Rep. 615. There is no merit in assignment three and the same is overruled.

Assignment 4 complains of the refusal of the court to give requested charge as follows :

“You are instructed that if from the evidence you believe that the said L. McCalister was guilty of negligence in not keeping a proper lookout for his own safety in approaching the switch at a high rate of speed as alleged by> the defendant, and that such negligence, if any, was the proximate cause and the sole proximate cause of the injury received by said Mc-Calister, then your verdict will be for the defendant railway company”

-for the reason that the question as to

whether the injury was caused by the negligence of the plaintiff set forth in said charge was an issue of fact, and the defendant was entitled to have same passed on by the jury, said charge having been requested before the reading of the main charge to the jury, and the court’s refusal to give same having been duly excepted to as shown by bill of exception No. 4.

The following special charge ashed by the appellant was given by the court, to wit:

“You are instructed that if from the evidence you believe that the plaintiff L. McCalister was guilty of negligence in failing to keep the proper lookout on approaching the switch which proximately contributed to cause the injury received by him, then, should you find that he was injured by the negligence of the defendant by leaving the switch open, his damages, if any, should be diminished by you in proportion to the amount of negligence attributable to said L. McCalister.”

The court having given one special charge on this subject, the appellant should not be heard to complain at the court’s refusal to give another on the same subject, therefore this assignment is overruled.

The fifth assignment of error is:

“The court erred in paragraph 10 of its main charge wherein the jury is instructed that the defense of assumed risk shall not be available in the following cases: ‘(1) Where such employs has an opportunity before being injured to inform the employer or a superior intrusted by the employer with authority to remedy or avoid the danger and does notify or cause to be notified the employer or superior thereof within a reasonable time, provided it shall not be necessary to give such notice when the employer or such superior thereof already knew of the danger. (2) Where a person of ordinary care would have continued in the service with the knowledge of the danger, and in such case it shall not be necessary that the servant or employs give notice of the danger as provided in subdivision one of this paragraph.’ ”

The foregoing is a literal copy of article 6645, R. S., and is therefore a correct proposition of law, but it was error to give it in this connection, as it was not applicable under the pleadings and evidence in this case. While the giving of this paragraph of the charge was error, we are of the opinion that it was harmless, as there is nothing in it which ' was calculated under the evidence to influence the jury in reaching a verdict.

The sixth assignment is:

“The court erred in paragraph 7 of its main charge to the jury wherein the jury is instructed that ‘it is the law of this state that every corporation, operating any railroad in this state, shall be liable in damages to any person suffering injury while he is employed by such company operating such railroad, for such injury resulting in whole or in part from the negligence of the officers, agents, or employés oí such carrier; or by reason of any defect or insufficiency due to its negligence in its cars, appliances, machinery, or other equipment,’ for the reason that such charge is misleading, and is a charge on matters not made issues by the pleadings of this case, and is calculated to impress the jury that they might find for the plaintiff for supposed defects or insufficiency in ito cars, appliances, and machinery, no such defects being an issue in this case.”

The court in defining the law charged the above. 'The first paragraph of such section is applicable to this case, but the second paragraph is not; therefore it was unnecessary to give it. Appellee was injured by reason of a switch being left open through the negligence of an employe, and a hand car on which he was riding was derailed. The evidence is uncontradicted that he was thrown from such motorcar and that appellant was chargeable with negligence. The court in applying the law to the fact only authorized a recovery from the facts of a derailment and open switch, and in no sense submitted the question of negligence in defective machinery, and as we view it the jury were not misled by said charge and said assignment is overruled.

Finding no reversible error in the record, the judgment is affirmed.
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