author: PLEASANTS, C. J.

text:
    TEXAS CO. v. CHARLES CLARKE & CO.
    (No. 6974.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 4, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Master and Servant <&wkey;>330 — Tort of Servant —Fact of Employment — Sufficiency of Evidence.
    In the owner’s suit for destruction of his oil barge by fire, evidence held insufficient to sustain a finding that one who carried a lantern near the oil flowing from a hose into the barge was in defendant’s employ and in the performance of his duties at the time.
    [Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 1270-1272; Dec. Dig. &wkey;330.]
    2. Evidence &wkey;>87 — Presumption—Failure to Produce Proof.
    The failure of a defendant to produce evidence particularly within his knowledge raises a presumption against him only when a plaintiff, having the burden of proof on the point, has produced evidence sufficient to raise an issue as to the truth of his claim, because to hold otherwise than that plaintiff’s case cannot be sustained when it depends wholly upon the failure of defendant, who is shown to be in possession of the facts, to disprove such claim, would be to abrogate the rule placing the burden upon a plaintiff to make his case.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 109; Dec. Dig. <&wkey;>87.]
    3. Master and Servant <&wkey;330 — Tort of Servant — Negligence — Sufficiency of Evidence.
    In a suit by the owner of an oil barge for its destruction by fire while loading, evidence held sufficient to support a finding that the fire was started by one claimed to be defendant’s servant carrying a lighted lantern near the oil that was flowing from a hose into the barge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. &wkey;330.]
    4. Appeal and Error &wkey;>265 — Questions Re view able — Finding.
    A finding unexeepted to in the trial court and not challenged on appeal must be taken as conclusive for purposes of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. i&wkey;>265.]
    5. Master and Servant <&wkey;330 — Tort of Servani^Scope of Employment — Burden of Proof.
    In an owner’s suit for destruction of his oil barge by fire, where the person was shown whose negligence in carrying a lighted lantern near the oil caused the fire, the burden was on plaintiff to show that such person was defendant’s servant acting in the scope of his employment in going upon the barge with the lighted lantern.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. &wkey;5.330.]
    6. Negligence <&wkey;121 — Res Ipsa Loquitur.
    In an action by the owner of an oil barge for its destruction by fire, where the court found that the fire was caused by the negligence of a specified person, and such finding was sustained by the evidence, the doctrine of res ipsa lo-quitur could not be applied to uphold the court’s alternative finding of negligence generally on the part of defendant.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. <&wkey;>121.]
    7. Negligence <&wkey;>142 — Action—Judgment-Support by Finding.
    When the evidence in a suit for negligence is sufficient to show that the injury of which plaintiff complains was due to one or another act or omission of the defendant, and that either of such acts or omissions was negligent, the trial court can properly find that plaintiff’s injury -was due to defendant’s negligence in one or the other respects shown by the evidence, and render judgment for plaintiff on such finding.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. <S&wkey;142.]
    8. Judgment <&wkey;256 — Support by Finding.
    When the alternative finding of the trial court, in a suit for negligence, that either of two acts or omissions of the defendant was negligent, is conditioned upon the insufficiency of the evidence to sustain the first finding, and such first finding is supported by the evidence, the alternative finding cannot be considered in support of the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446 — 454; Dec. Dig. &wkey;250.]
    9. Negligence &wkey;555 — Loading Oil Barge.
    Where defendant was having plaintiff’s oil barge pumped full of oil at 3 o’clock in the morning at a wharf from its pumping station through a pipe line, ordinary care on its part did not require that it keep some one constantly on the barge to guard against the approach of strangers near the flowing oil who might ignite it.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 68; Dec. Dig. <&wkey;>55.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Charles Clarke, doing business as Charles Clarke & Company, against the Texas Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    T. J. Lawhon, of Houston, for appellant. James B. & Charles J. Stubbs, and Marion J. Levy, all of Galveston, for appellee.
   PLEASANTS, C. J.

Appellee, Charles Clarke, who conducts his business under the name and style of Charles Clarke & Co., brought this suit against appellant, a corporation, to recover damages in the sum of $8,-000, the alleged value of an oil barge owned by appellee and which was destroyed by fire which appellee alleges was caused by the negligence of appellant. The barge, which was known as the “Hopper,” was destroyed by fire on March 13, 1913, while being loaded with oil by agents of appellant at Pier A, Southern Pacific Docks at Galveston. Plaintiff’s petition contains the following allegations of negligence on the part of defendant and its employés upon which he relies for recovery:

“That as plaintiff is informed, believes, and therefore alleges, the agents and employés of-defendant performing said work were H. L. Stewart, E. C. Whitehead, A. Fleming, R. Hayden, and others whose names are unknown to this plaintiff, and which he has been unable to ascertain after diligent inquiry. That while loading said barge with oil, the defendant and its said agents and employés negligently caused, or permitted, the oil in said barge to catch fire, thereby causing the complete destruction of said barge, which was of 280 tons gross burden and was of the fair and reasonable value of $8,000.
“(2) That defendant was also negligent in not using or requiring its employés to use in and about the loading of said barge one or more electric lights, or other lights of such character or so screened and sheltered as not to set fire to said oil, or the gases or vapors thereof, which plaintiff avers were caused to ignite by the negligent failure on the part of the defendant, its servants and agents, to exercise proper care in the selection and use of reasonably safe lights. That but for such negligent failure the gas proceeding from said oil and the said oil would not have ignited and have destroyed said barge.
“(3) That the said fire was also proximately caused by the careless use or management on the part of said defendant, its said servants and agents, of one or more lights or lanterns, which were used by them on the night of March 12th and early morning of March 13, 1913, in coupling the hose, through which the oil was conducted from the tank or tanks on shore, into the body or hull of the barge, and which lights or lanterns, or not less than one of them, was also used by one of said employés in inspecting the said work and the progress of the loading, or allowed to be placed or remain on or near said barge and the oil being loaded thereon.
“(4) That plaintiff does not know which of the said employés of defendant held or placed the said light or lantern, or permitted the same to be done, but alleges that it was one of them, and that while not holding said light or lantern the same was placed on the barge, or near the barge on the wharf by said employé, or permitted to be placed there, and while being carried, or at rest, was in dangerous proximity to the cargo of oil being loaded and the gases proceeding therefrom.
“(5) That one or more was negligently brought or placed by said defendant, its servants and agents, or one of them, or allowed to be placed, so near to said oil and said barge that the gas or vapor from said oil, or the oil itself, came in contact with the flame of the light or lantern, and, being highly inflammable, caught fire, which fire was at once communicated to the entire cargo and the barge and it was impossible, by the exercise of any diligence whatever, to have extinguished the flames and have prevented the destruction of the barge, which plaintiff, however, succeeded in removing from its position at the pier so as to prevent probable loss or damage of cotton on the wharf and injury to other vessels, which were near by.
“(6) That defendant was charged ty of exercising reasonable care in the fulfilling its contract and undertaking to load said barge with oil, and if said care had been exercised by defendant, the fire would not have occurred, but defendant and its servants and agents failed to use ordinary care in the performance of their duty, and the occurrence of such fire, while defendant was loading such barge, primarily places the responsibility upon said defendant. That defendant’s agents were negligent in bringing or allowing the fire or flame to be in too close proximity to the oil in the barge and to the oil, vapor, or gas emanating therefrom.
“(7) That defendant is a dealer in was undertaking in the course of its business the loading of said barge, and was in the exclusive charge and control of said loading.”

The defendant’s answer contains special denials of each of the allegations of negligence contained in the petition. It also specially denies the allegation that E. O. Whitehead was its agent or employé and as such went upon or was engaged in the work of loading said barge, and the further allegation that the barge while being loaded was in the exclusive possession and control of defendant.

The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the value of the. barge with interest, amounting in the aggregate to the sum of $8,707.

The evidence shows that, while the barge Hopper was being loaded with oil by defendant’s agents and employés, the gases arising from the oil became ignited, and the fire thus started destroyed the barge and its contents. There is no direct evidence as to how the ignition of the gas and oil occurred. The oil was being pumped into the barge from defendant’s reservoir, which is situated about one mile from the pier at which the barge was lying. A pipe line extended from the reservoir to the wharf, and a flexible hose about 30 feet in length carried the oil from the end of the pipe line into the hold of the barge.' At the time the oil became ignited, there was no opening into the hold of the barge except the manhole through which the oil was being pumped. The work of loading the barge began about 9 o’clock at night, and the explosion and fire occurred about 3 o’clock the next morning, shortly before the loading was completed.

The captain of the barge, who was in the cabin at the time the explosion caused by the ignition of the oil gas occurred, testified that just before the explosion he heard some one step on the barge from the wharf. Just after the explosion, E. O. Whitehead was rescued from the water alongside the barge and was found to be'badly burned. After the fire a switchman’s lantern was found in the wreck of the barge below the manhole through which the oil was being pumped at the time of the explosion. No lantern of this kind was used or kept on the barge. An employé of the defendant named Stewart had charge of the work of loading the barge. When he attached the hose to the hydrant at the end of the pipe line to start the flow of oil into the barge, he was assisted by two other men, the name or identity of neither of whom is shown. One of these men had a switchman’s lantern similar to the one found in the bottom of the barge after the fire. After the hose had been properly adjusted and the oil began to be pumped into the barge, Stewart went from the barge to the pumping station and procured an electric flashlight for use in examining the progress of the loading. He was frequently on the barge for this purpose and made several reports by telephone to the engineer at the pumping station as to the progress of the work. Shortly before the fire occurred, he made an examination, and, finding that the loading was nearly completed, he went to' the telephone, which was about 2blocks from the barge, to inform the engineer of this fact and advise him to “slow down” his pump. While Stewart was away from the barge for this purpose, the explosion occurred and the .fire started.

The only evidence as to the employment of Whitehead by the defendant is the. following testimony of defendant’s employ é wlio was operating the engine at the pumping station on the night of the fire:

“Q. Were you working for the Texas Company in March last year? A. Xes, sir. Q. Did you know Mr. E. C. Whitehead? A. Xes, sir. Q. Was he working for that company? A. Xes. Q. Did you know what kind of work he was doing that night, yourself? A. No, sir; I don’t know exactly what he was doing that night. Q. Do you know he was employed by the company? A. I know he was employed; I don’t know whether he was employed by the company that night or not. Q. Did anything happen to him that night? A. He got burned that night. Q. Did you see him after he got burned? A. I seen him after he got burned. Q. Had he been working for the company, the Texas Company, so far as you know? A. As far as I know, he had been working for the Texas Company. Q. When was the last time you saw him working for the Texas Company before he got burned? A. I don’t remember ; I worked nights at that time. I don’t know where Whitehead was working that night, if he was working; I don’t know what Whitehead was doing that night.”

This is the only testimony in the record bearing upon Whitehead’s employment by the defendant, or the character and scope of the duties of his employment. Upon this evidence the trial court made the following findings of fact;

“The said Whitehead was employed by the Texas Company at the time of the destruction of said barge. While the evidence does not directly reflect that the said Whitehead was working, in the line of his duty at the time of such explosion, for the defendant, yet no evidence was offered by the defendant that he was not so employed by it and acting in the line of his duties at the time of such fire, when such knowledge was and should have been especially within the possession of defendant, and therefore the inference and presumption fairly obtains that, if he had not been in defendant’s employ at such time and acting in the line of his duty, defendant would have offered testimony to such effect, and that defendant’s failure'to do so is attributable only to the fact that he was then in the defendant’s employ and acting within the scope of his duties. * * *
“Erom all the foregoing facts found, and other evidence and circumstances in the case, I find that said cargo of oil was set on fire and said vessel burned up and destroyed through the negligence, severally and collectively, of the defendant to exercise proper care in the selection and use of reasonably safe lights in and about said vessel while being loaded, and in the careless use, and permitting of such use, by defendant’s servant, Whitehead, of an oil-burning switchman’s lantern in or about the manhole through which the flexible pipe projected into the vessel and discharged its cargo of oil while such Whitehead was acting within the scope of the duties of his employment.
“But if for any reason it should be held that such specific facts and other evidence and circumstances in the case should not be sufficient to support a general finding that said vessel was set on fire through the act of said Whitehead negligently bringing a lighted switchman’s lantern in dangerous proximity to the inflammable vapors and gases given off by the cargo of oil being loaded on said barge, and that said Whitehead was at the time an employé of the defendant acting within the scope of his duties as such employs in and about the loading of said vessel, I find that said vessel was destroyed by fire through ignition of the vapor or gases thrown off from such oil communicating such fire to the cargo of oil and destroying the vessel, but find that it does not appear from the evidence just what was the cause or causes of the, ignition of such gases and vapors from said oil, though I further find that the occurrence was such as in the ordinary course of things does not happen if those who have the management of the loading use proper care, and that the defendant in this case having had exclusive control of the loading of such vessel and of the vessel also, in so far as in any wise connected with" such loading, and the fire in said vessel having occurred in connection with such loading, during and at the time thereof, while being supervised and directed by defendant and its servants, and no explanation being offered by defendant, I conclude that said fire and the destruction of the vessel was proximately caused by the want of proper care and the negligence generally of the defendant.”

By its second and third assignments of error the appellant assails the judgment on the ground that the findings of the court that Whitehead, at the time he caused the fire by bringing his open lantern near the manhole through which the oil was being pumped in the barge, was in the employment of the defendant and was acting within the scope of his employment, are without any evidence to support them.

We think the assignments should be sustained. There is no evidence, direct or circumstantial, sufficient to sustain the conclusion that Whitehead was in the employment of defendant and in the performance of the duties of his employment at the time he negligently set fire to the oil in plaintiff’s barge, and the finding of the court that he was is based upon inference and presumption arising from the facts that defendant must have known whether or not he was in its employ and was performing the duties of his employment and offered no evidence showing that he was not. When a plaintiff has produced evidence sufficient to raise an issue as to the truth of his claim, and it appears from the nature of the case and the circumstances disclosed by the evidence that defendant is in possession of evidence which will show whether or not the inferences which can legitimately be drawn from plaintiff’s evidence are true, and does not offer it, it is a fair and legitimate inference that the evidence so withheld by the defendant would, if produced, confirm the inferences arising from plaintiff’s evidence. In such a case, the failure: of defendant to produce the evidence can properly be considered in determining the issues raised by plaintiff’s evidence, and for this purpose it may be said to have affirmative probative force. Pullman Car Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624. But plaintiff’s case cannot be sustained when it depends wholly upon the failure of defendant, who is shown to be in possession of the facts, to disprove plaintiff’s claim. To hold otherwise would be to abrogate the rule which places thw burden upon a plaintiff to make out his case Until this burden is discharged by evidence produced by plaintiff sufficient prima facie to make out the case alleged by him, the defendant is not required to offer any evidence, and Ms failure to do so cannot, under any circumstances, be regarded as any evidence of the truth of plaintiff’s claim. Railway Co. v. Butcher, 98 Tex. 462, 84 S. W. 1052; Railway Co. v. Leuschner, 166 S. W. 417; Railway Co. v. West, 174 S. W. 292.

The only evidence that Whitehead was an employs of defendant is the testimony of the defendant’s engineer, which we have before set out in full. All that this testimony shows is that Whitehead worked for the defendant company in the month of March, 1913, the month in which plaintiff’s barge was burned. There is not a word in the testimony indicating the duration of his employment or the character of the work he was employed to perform, and the witness expressly states that he does not know whether Whitehead was in the employment of the defendant on the night the fire occurred. We think it clear that this testimony does not raise the issue of Whitehead’s employment by the defendant on the night of the fire, nor of the character and scope of his employment. The only other facts relied on by appellee to show such employment are that Whitehead, as found by the court, went upon the barge with a lighted lantern and set the oil afire, and that one of the unidentified men who assisted defendant’s servant Stewart in coupling the hose to the hydrant at the end of pipe line had a lantern similar to the one found in the bottom of the barge after the fire, and which it may be fairly inferred was the lantern carried by Whitehead and which started the fire.

It seems to us that the inferences to be drawn from these facts do not rise to the dignity of evidence, but at most can only be regarded as surmises and suspicions, and cannot sustain the finding of the trial court.

We think the finding of the trial court that the fire was started by Whitehead carrying a lighted lantern near the oil that was flowing from the hose into the hold of the barge is sustained by the evidence. Neither party excepted to this finding in the court below, and it is not challenged in this court, and for the purposes of this appeal it must be taken as conclusive.

It being shown that Whitehead was the person whose negligence was the proximate cause of the fire, the burden was upon plaintiff to show that he was defendant’s servant and was acting within the scope of his employment in going upon the barge with the lighted lantern. Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Henefy, 99 S. W. 885; Christensen v. Christiansen, 155 S. W. 997.

Appellant’s sixth assignment of error is as follows:

“The court erred in its fifth finding and conclusion of fact in finding and concluding that the defendant being in exclusive possession of said barge when the same was destroyed, and offering no explanation as to the cause of said destruction, is guilty of negligence generally, because the court seeks to find a state of facts from which negligence would be presumed against the defendant under the rule of res ipsa loquitur; and plaintiff by his evidence having proved that said barge was destroyed by the act of E. C. Whitehead in going thereon with a lighted lantern, and the court having found that the said barge was so destroyed, is precluded from finding negligence generally based on the rule of res ipsa loquitur.”

The court having found that the fire was caused by the negligence of Whitehead, and tMs finding being sustained by the evidence, the doctrine of res ipsa loquitur, upon which the court’s alternative finding of negligence generally on the part of the defendant is based, cannot be applied.

In the case of Washington v. Railway Co., 90 Tex. 320, 38 S. W. 764, Judge Gaines explains the doctrine of res ipsa loquitur as follows;

“While the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident and the circumstances in proof attending it may be such as to lead reasonably to the belief that without negligence it would not have occurred. Railway Co. v. Suggs, 62 Tex. 323. ‘Where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.’ Scott v. Dock Co., 3 H. & C. 596. See, also, to same effect, Transportation Co. v. Downer, 11 Wall. 129 [20 L. Ed. 160]. In such a ease the guestion of negligence should be submitted to the jury.”

We agree with appellee’s counsel that the undisputed evidence shows that defendant bad exclusive charge and control of the work of putting the oil in the barge. If the evidence only showed that the fire was caused by the ignition of the oil during the progress of the work, it may be that the doctrine of res ipsa loquitur would apply, because in the ordinary and natural course of things the oil would not have become ignited if those in charge of the work of putting it in the barge had used proper care; but the evidence, as we have before stated, sustains the finding of the trial court that the oil was ignited by the negligence of Whitehead in placing a lighted lantern near the flowing oil. When this fact is shown, there is no room for presumption or inference as to the cause of the fire, and the doctrine of res ipsa loquitur cannot be applied. Under this state of facts, the liability vel non of the defendant depended entirely upon the question of whether Whitehead at the time he caused the fire was a servant of defendant and engaged in performing the duties of his employment, and the burden was upon plaintiff to prove these facts. Sweeney v. Erving, 228 U. S. 232, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905; Parsons v. Iron Works, 186 Mass. 221, 71 N. E. 572; Dentz v. Railway Co., 75 N. J. Law, 893, 70 Atl. 165; 29 Cyc. 592.

When the evidence in a case is sufficient to show that the injury of which plaintiff complains was due to one or another act or omission of the defendant, and that either of such acts or omissions was negligent, a trial court might properly make a finding that plaintiff’s injury was due to the negligence of the defendant in one or the other respects shown by the evidence, and render judgment for plaintiff on such findings. But when, as in the instant case, the alternative finding of the court is conditioned vpon the insufficiency of the evidence to sustain the first finding as to the cause of the accident, and the first finding is .supported by the evidence, the alternative finding cannot be considered.

Appellee by an independent counter proposition presents the theory that, regardless of the question of whether Whitehead was an employ® of defendant and was performing the duties of his employment at time he negligently set fire to the oil, under the general allegations of negligence contained in plaintiff's petition the court could have found for plaintiff on the ground that defendant, being in exclusive control of the work of loading the barge with oil, and knowing the inflammable character of the oil, was negligent in permitting a stranger to go upon the boat and near flowing oil with a lighted lantern.

It cannot be reasonably inferred from the evidence that ordinary care on the part of the defendant required that it keep some one constantly on the boat to guard against the approach of strangers near the flowing oil. The barge itself was in the custody and control of the master, who was plaintiff’s employs. No one other than the servants of plaintiff or defendant had any business on the barge, and we think it conclusively appears from all of the circumstances shown by the evidence that it could not have been reasonably anticipated by the defendant’s servant Stewart, who had charge of the work of loading the barge, that during the short time he was absent to report the progress of the work to the engineer at the pumping station a stranger would go upon the barge and negligently ignite the oil. To hold that he should have anticipated such an occurrence, especially at 3 o’clock at night, would be to require of him a much greater degree of care and precaution than is possessed by ordinary men.

It follows, from the conclusions stated, that the judgment of the court below must be reversed. There is nothing in the record which explains the failure of appellee to offer any evidence upon the question of whether Whitehead was an employe of defendant and acting in the scope of his employment at the time he caused the fire. Nor is there anything in the record which indicates or suggests that the evidence upon this question was not as accessible to ap-pellee as to appellant.

In this state of the record, it may be we would be authorized, under our view of the law as before expressed, to here render judgment for the appellant; but, because it is apparent that the facts were not fully developed upon the trial in the court below, we think the cause should be remanded for a new trial, and it is so ordered.

Reversed and remanded.
      <§=^For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      @=»For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. et al. v. LIBERAL ELEVATOR CO. et al.
    (No. 889.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 5, 1916.
    Rehearing Denied Jan. 26, 1916.)
    Actions <&wkey;57 — Consolidation—Multiplicity of Suits.
    Defendants, who received many shipments of coal from the mine over plaintiffs’ railroads, claimed numerous shortages, there being differences between the mine weights and the weight of the coal when received. Plaintiffs claimed that the differences were in most cases due to evaporation of the water in the coal or to differences in scales. Held, that as a judgment in one action would in no wise be conclusive in another, defendants will not be by injunction required to consolidate their several suits on the principle that a multiplicity of suits should bo avoided.
    [Ed. Note. — Eor other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. &wkey;?57.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by the Chicago, Rock Island & Gulf Railway Company and another against the Liberal Elevator Company and others. Prom a judgment for defendants, plaintiffs appeal.
    Affirmed.
    C. E. Gustavus, of Amarillo, and N. I-I. Las-siter, of Ft. Worth, for appellants. Reeder & Dooley, of Amarillo, for appellees.
   HENDRICKS, J.

The appellee the Liberal Elevator Company sued the appellants, the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company, in the justice court of Potter county, Tex., on five different alleged causes of action, ranging in amounts involved from the sum of $2.75, the smallest, to $7.17, the maximum, and in each suit asked for $10 attorney’s fees. Each of said suits is based upon an alleged loss and shortage of coal shipped by the elevator company as consignor, and received by it as consignee. Four of the said shipments have a common origin, to wit, Koehler, N. M., and one from Van Houten, N. M.; said shipments being transported over the lines of said railway company as connecting and delivering carriers. Two of the shipments from Koehler had a common destination, to wit, Kingsdown, Kan.; another was consigned to the elevator company at Tyrone, Okl.; and the fourth to the same consignee, at Liberal, Kan. The shipment from Van Houten, N. M., was also destined to the elevator compány at Tyrone, Old. One of said suits was for an alleged loss and shortage of 1,180 pounds of coal; another for 1,780 pounds; two for 2,600 pounds each; and one alleging a loss of 8,300 pounds. The appellants railway companies made a motion in the justice court to consolidate said suits, which was overruled by the justice of the peace. This particular suit is instituted by the appellants, alleging in detail the character of the justice court cases filed against them, seeking to restrain the prosecution of the five separate suits until consolidated, asserting that said eases should be tried as one; that economy of time, expenses, and costs of said suits would result; and that the appellee herein the Liberal Elevator Company, by filing said separate suits, was seeking to annoy, “harass, and duress the appellants into a settlement of said pretended claims.” Quoting from appellant’s brief, it is alleged that the plaintiff in the justice court suits—

“was relying for recovery upon the difference in the mine weights and weights at destination, and that any such difference in weights could be due to difference in scales, evaporation of dampness after the coal was taken from the mines, and that no part of the coal was taken 'from the car. * * * The Liberal Elevator Company answered, denying that there would be any saving in consolidating the cases, and that instead of simplifying, there would be confusion, and that no fraud was attempted against appellants.”

At the trial upon the merits it was shown that the claims of loss are based upon the difference in weights exhibited in the bills of lading, and what the contents of each car weighed at destination. It is not clear, but we infer that these weights at the origin of shipment were mine weights adopted by the railway company and incorporated into the bills of lading, and that the weights at destination were made by the Liberal Elevator Company, thus exhibiting the difference and loss contended for. A coal dealer, as a witness for the appellants, testified that he had been in the coal business in Amarillo for about 12 years, and was acquainted with the New Mexico mines and knew how the coal was there weighed up; that in accordance with his experience, not one in 20 would hold out in weight with the mine weights, and that the usual shortage was from 1,000 to 2,000 pounds on each car. He also said that when the coal comes out of the mines some of it is dry, and some of it is damp, and ordinarily is loaded and transported in open top cars, usual with such shipments.

Each of the litigants, plaintiffs and defendants in the justice court, in the separate suits mentioned, expected to maintain their rights in that court with reference to the evidence, by deposition testimony, except that the railway companies expected to use personal testimony of two or three witnesses, but for what purpose is not shown. The theory of appellants, of course, is based upon the proposition of a multiplicity of suits, and cites the case of Railway Co. v. Dowe, 70 Tex. 6, 7 S. W. 368, as sustaining authority for the maintenance of the action. In considering this case in connection with another case between the same parties (70 Tex. 2, 6 S. W. 790), it seems that a contractor of the railway company issued quite a number of time checks to his employes, and which were indorsed in blank by them, and came into the possession of Dowe. Dowe had instituted a number of suits in the justice court and obtained judgment thereon, all of which were nonappealable, and the railway company had previously sought to restrain the execution of those judgments. This particular injunction, though stating the case as one of a great hardship, was denied by the Supreme Court, on the theory that a court of equity would not interfere to control the proceedings of other courts where there had been mere errors of law or judgment.

In the second suit for injunction, restraining Dowe from instituting 30 separate suits, each of which, but one, was under $20, we assume that the issues in each of the threatened suits were the same; that is, the liability of the railway company for the different checks issued by the contractor and the defense of the statute of limitations interposed by said railway company. Justice Gaines said:

“It is * * * laid down that where one party holds several claims against another, growing out of the same or similar transactions, and depending for their determination upon the same questions of law and fact, equity will enjoin separate suits upon the demands, provided one suit has been tried and determined in favor of the complainant in the bill.”

The element of a favorable determination, to be shown by the complainant in the bill as to one suit, Justice Gaines thought unnecessary, but, as we interpret, the opinion, the remaining enunciation of the principle was the controlling one applicable to the issues that would have been contested in the threatened suits.

Justice Gaines cites section 254, Pomeroy’s Equity Jurisprudence, as authority for that principle, which is stated by the latter as follows:

“In the second branch of the same class, [where] the single defendant has brought a number of simultaneous actions at law against the plaintiff, all dependent upon similar facts and circumstances, and involving the same legal question, so that the decision of one would virtually be a decision of all the others, a court of equity .may then interfere and restrain the prosecution of these actions, so that the determination of all matters at issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multiplicity of suits may thereby be prevented.”

We have here the same plaintiff and the same defendants. The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), in effect when these contracts matured, and rights accrued, makes the defendants liable, if the negligent loss has occurred. irrespective of any other considerations. The application of legal principles for the purpose of ascertaining the liability, or the defenses, in issue in the justice court, are probably simple. The fact remains, however, that the demands are independent, and that the facts based upon each individual shipment, while probably similar as to some phases, are distinct. The petitioners say the loss is not due to any of the negligence of the railway companies, and if the difference in weights is not attributable to the difference in scales, affording a different test as to weights, there has been an evaporation of dampness in the coal after the same had been weighed at the mines and before the weight of same at destination. In the justice court plaintiff will have to prove the facts as applied to each separate shipment, and the contest injected by the defendant’s defenses is based upon an alternative condition of facts, one or the other, which might be proved as to one or two, but not as to all, of the shipments; or one shipment may be dry coal and another of damp, which exhibits in this action a showing of a variation of testimony and difference in results as applied to each individual demand which might ensue, and as to which a jury might, to some extent at least, become confused. A judgment in each separate suit, if not consolidated, would certainly not be res adjudicata, which, however, we, of course, do not apply as a test, except argumentatively as presenting the individuality, in law, of the separate actions. We think the Dowe Case does not apply.

The case of Piano Co. v. MacMaster, 51 Tex. Civ. App. 527, 113 S. W. 337 (writ of error denied by the Supreme Court), which is the next nearest case, apparently similar, or apparently analogous, cited by appellant, was a suit to enjoin five separate suits pending in two courts, of different justices of the peace, each, however, we assume, involved issues of law and fact dependent upon an entire contract, and whether the plaintiff or defendant in each of said separate suits had breached said contract. The case of Street Ry. Co. v. Mayor, 54 N. Y. 159, 162, 163, cited by Justice Gaines in the Dowe Case, was one where a city brought 77 actions in a justice’s court to recover penalties for the violation of a city ordinance concerning the running of cars, each action for a separate penalty. The court said:

“The decision made in the one which is to be prosecuted will in effect be a decision of all of them.”

There are other cases concerning a community of interest, and common violations, existing among a numerous body of persons, involving nuisances, riparian rights, fisheries, matters of taxation affecting the public, and other public burdens, and at times involving matters of private interest illustrated by the case, Fraternal Lodge v. Ray, 166 S. W. 48, where separate actions were brought by different members of the lodge solely to test the right of the lodge to put in force an increased assessment — all arising from a common source, involving similar facts and governed by the same rule of law, which, though different parties are affected, the rule against multiplicity may be invoked. There is no question but that the district courts of this state, by virtue of their residuary power, granted by the Constitution, where a power is not possessed by any other court, with the power to administer equitable rights, and apply equitable rules, would have the right, after the suits are filed, in a proper case, to compel the litigation in one suit, notwithstanding the statute with reference to consolidation of suits; but we do not think this is the character of cause in which it should be exercised. We are not attempting to declare a test, but we are convinced that if the rule depends for its successful application to cases, “depending for their determination upon the same questions of law and fact,” as Justice Gaines said, it had been laid down; or, as Pomeroy expressed it, that the causes must be upon such similar facts and circumstances as “that the decision of one would virtually be a decision of all the others” — that plaintiff has not made such a case.

The judgment of the trial court is affirmed.
      <@=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    TEXAS & N. O. R. CO. v. TURNER.
    (No. 26.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 27, 1915.
    On Motion for Rehearing, Jan. 20, 1916.)
    1. Railroads <&wkey;446 — Injury to Stock-Question for Juey — Owneeship.
    In a suit against a railroad for damages for killing three mules and injuring another, evidence held to make the plaintiff’s ownership when they were killed or injured a question for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. <&wkey;446.]
    2. Appeal and Error <&wkey;1002 — Verdict — Conclusiveness.
    It is not the province of the Court of Civil Appeals to disturb the jury’s finding on conflicting evidence.
    [Ed. Note. — For other cases, see. Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey;> 1002.]
    3. Trial <&wkey;352u-iHSTRucTi0Ns — Assumption as to Facts.
    In a suit against a railroad for the killing of mules, where the plaintiff’s ownership was in issue, defendant’s special issue as to whether, under an agreement between plaintiff and another the mules become the property of such other, was properly refused, as assuming a sale and indirectly requiring the jury to find a sale.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    4. Railkoads <&wkey;443 — Injury to Stock — Action — Burden of Proof.
    Plaintiff, in a suit against a railroad for killing mules, was required to show by a pre-ponderarme of tlio testimony, that he owned them when they were killed.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443J
    5. Trial <&wkey;307 — Documentary Evidence— Taking to Jury Room.
    Under Vernon’s Sayles’ Ann. Oiv. St. 19,14, art. 1957, providing that the jury may take with them any written evidence, refusal of the court, in an action for the killing of mules, whcro plaintiff’s ownership was in issue, to allow the jury to take plaintiff’s written statement conflicting with his oral testimony as to ownership, was error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 732-737; Dec. Dig. &wkey;3G7.]
    6. Appeal and Error <&wkey;1069 — Harmless Error — Taking Documentary Evidenoe to Jury Room.
    Such error was prejudicial, as it denied defendant the statutory right as to a writing bearing upon the material issue in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4130, 4138, 4139; Dec. Dig. &wkey;1069.]
    On Motion for Rehearing.
    7. Appeal and Error &wkey;3ll70 — Harmless Error — Taking Documentary Evidence to Jury Room — Rule oe Court.
    Such error could not be regarded as harmless error, within Court of Civil Appeals rule 62a (149 S. W. x) that no judgment shall be reversed on the ground of trial error, unless the appellate court is of the opinion that it was such a denial of right, or was calculated to cause, and probably did canse, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4454, 4543; Dec. Dig. &wkey;1170.]
    Appeal from Orange County Court; D. C. Bland, Judge.
    Action by J. S. Turner against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Hightower, Orgain & Butler, of Beaumont, for appellant. Bisland & Bruce, of Orange, for appellee.
   MIDDLEBROOK, J.

This is a suit by the appellee, J. S. Turner, against the Texas & New Orleans Railroad Company, for damages for the killing of three mules, alleged to be worth $275 each, alleging that one mule was killed on the 27th day of September, 1914, and that two mules were killed on the 1st day of October, 1914, that the railroad company negligently permitted its fence to be down and out of repair where the mules entered upon the right of way of the company, and that the appellant railroad company negligently and carelessly, on the dates above mentioned, ran its locomotives and cars against and over said mules and thereby killing them. There was also damages alleged to a fourth mule on the same grounds, alleging the injury of the mule, and that he was damaged thereby in the sum of $150, and that his total damages was the sum of $975. Appellant answered by general demurrer and general denial, except as to the plaintiff’s residence, Ms ownership of the mules, and in these connections answered that, not having sufficient information, it neither affirmed nor denied; admitted that it was a railroad corporation, and that it owned and operated a line of railroad through Orange county, Tex.; denied specially that it negligently permitted its right of way at the place where the mules were killed to become unfenced, and to be unfenced at the time the mules were killed; denied specially that it negligently and carelessly ran its engine and cars against and over the mules, as alleged, by plaintiff; and denied specially that it was indebted and liable to the plaintiff for damages, in the sum of $975. The case was tried in the county court of Orange county on the 20th day of January, 1915, resulting in a verdict and judgment in favor of the plaintiff in the sum of $212.50 each for the value of the three mules killed.

The case was submitted to the jury by the trial court on special issues, substantially as follows:

Was the plaintiff the owner of the mules killed at the time they were killed?

Were the mules killed at the time and place alleged?

Did the railroad company negligently permit its right of way to become unfenced, as alleged, so as to permit stock to come upon the right of way?

Did the railroad company negligently and carelessly run its engine and cars on and against plaintiff’s mules, wounding and killing them, as alleged?

What was the reasonable value of each of the mules killed?

The jury answered the special issues, finding appellee, Turner, to be the owner of the mules at the time they were Mlled; that the mules were killed at the time and place alleged; that the railroad company was negligent in permitting its right of way fence to be out of repair at the time and place the mules were killed, as alleged, and that it negligently and carelessly ran its engine and cars against and upon the mules and killed them, as alleged; and that the value of each mule killed was $212.50.

Appellant requested a special charge, instructing the jury to return a verdict for the defendant; also a special charge, instructing the jury that the burden of proof was upon appellant to establish the negligence of appellant in the maintenance of its right of way fence, and defining negligence, designated as “special charge No. 1.” It also asked several special issues, which were given by the court to the jury, embodying, substantially, the following:

Had the right of way fence been down a sufficient length of time that a person of ordinary care should have repaired it (defining ordinary care)?

Did the private fence of the Higgins Oil Company substantially take the place of the defendant’s right of way fence?

Was the breach in the fence permitted to exist for the benefit of George Harmon, who was using the mules at the time they were killed?

What was the market value of the mules killed at the time and place they were killed?

What was the age of each mule killed?

The jury answered that the right of way fence had been down a sufficient time that a person of ordinary care should have repaired it.

The record does not show whether the court gave appellant’s requested charge No. 1, but no error is assigned, and we suppose it was given, that the Higgins Oil Company fence did not take the place of the right of way fence; that the breach in the fence was not permitted to exist for the benefit of George Harmon, but that he did use it in hauling timbers upon the right of way; that the market value of the mules killed was $212.50 each; and that the age of each mule was nine years.

Appellant assigns 11 errors in his brief, substantially, that the court erred in not instructing a verdict for it; that the verdict of the jury was contrary to the vast preponderance of the evidence, and not supported by the evidence, stated from different viewpoints; that the evidence was not sufficient to warrant the value of the mules as found by the jury; that the court erred in not submitting its special issue No. 6, this special requested issue instructing the jury to find when the mules became the property of George Harmon; that the court should have permitted the jury to take with it in its retirement the owners’ stock claim signed by George Harmon, the statement made by Jerome Turner, and the plat drawn by the witness, A. Long. This is the eleventh and last assignment by appellant, and is abandoned by it, except as to the statement made by Turner to the railroad claim agent, S. M. Gordon. Hence we do not incumber the case with the other written statement, or documentary testimony. The statement of Mr. Turner is as follows:

“T. N. 2025, Orange Co. 10 — 27—14.
“I live six miles southeast of Terry, Tex. Am a farmer by occupation. About three months ago I sold to George Harmon, who lives four miles west of Orange, four mules for the consideration of $1,100, to be paid on November 1, 1914. Two of these mules were black mare mules, 16% hands high, weighing 1,250 pounds each, one bay horse mule 16% hands high, six years old, and weighing 1,250 pounds, one bay horse mule, seven years old, 16% hands high, weighing 1,250 pounds. The mules I bought during the month of February, 1915, from a dealer in Houston, Tex., his name I do not know; buying mules for the purpose of rice raising, which I did last year, but on account of being unable to get water this year for irrigating purposes, concluded to dispose of the mules. First cost of mules was $450 per span, and freight to Terry was about $33, for the four head. Mi. George Harmon told me, a short time ago, the mulés I had sold him had been killed by a train near Tulane, and two he had purchased from his father. I had seen the two mules he bought from' his father, R. M. Harmon, and were mules I considered would have weighed 1,050 pounds each, and I should judge 13% hands high, and were mules of middle age. Am not posted on mule values now, and therefore cannot state, just what the last two mentioned mules were worth. Mr. George Harmon also stated one of his was also injured when the others were killed, but did not state which mulo it was. And in conclusion will state that I did not take Harmon’s note for the purchase money for these four mules. Merely sold him the mules, and taking only his word when he would pay me, and do not even hold a mortgage on these mules. [Signed] Jerome Turner.”

It is certain that George Harmon put in bis claim to the railroad company for the value of the mules killed, which Mr. Turner is suing for in this suit.

Upon the trial of the ease, J. S. Turner, among other things, testified:

“Mr. Gordon first asked me when Mr. Harmon had bought those mules. I said Mr. Harmon hadn’t bought those mules; I didn’t consider them sold to Mr. Harmon until they wore killed; he surely stood good for them for $550 per span should the mules be killed or disabled while in his possession. * * * ' He asked me again when those mules were to be paid for. I said I didn’t sell those mules; he simply merely stood good for them in case the mules were disabled. * * * Mr. Gordon said, ‘Have you ever offered those mules for sale?’ I said, ‘Tes.’ I told him I had, and he asked me my reason for selling the mules. I told him to meet my financial obligations. He said ‘When are they due?’ so I said, ‘November 1st.’ As to when the mules are to be paid for, I signed no statement or note to that effect; I wasn’t ready to. I did not read the statement. 1 stated my obligations wore to be met on November 1st; that was my object for selling the mules,. I owned the mules when they were lost. I don’t think I made the statement, T did not trade Harmon for, or reserve mortgage for, these four mules, but merely sold him the mules by taking only his word as to when he could pay me, and do not even hold a mortgage on those mules,’ to Mr. Gordon, not in that way. I stated that I had never held any mortgage or note on the mules. He said, ‘That’s a great way to do this business.’ Considering Mr. Harmon was man enough to live up to his word. Then I did make substantially the statement that I have no mortgage or note. Mr. Gordon asked me, and I did tell him, he was a man of his word; I judged him to be. I don’t remember just exactly when I turned these mules over to Mr. Harmon — about two months from the time they were killed. I didn’t keep any date. He was paying me for the hire of these mules $25 per month, straight time, and feed. He hasn’t paid me anything. He was to pay me $25 per pair for the entire bunch of mules; I don’t know as there was anything further said about any later pay. He was to pay me for them until he got his wood contract up; there was no specified time. If he had paid me that $25 per month each month until he had fully paid the purchase price of $275 in case they were not killed or disabled, they would have been my mules. Mr. Gordon did not show me the statement that Mr. Harmon made. I don’t remember whether he made the statement to me that Mr. Harmon had stated to him that he (Harmon) was the owner of the six mules killed by the train on the Texas & New Orleans right of way track. He did tell me that Mr. Harmon had in a claim for the value of those mules. * * * It was understood between me and Mr. Harmon that he was to feed the mules and pay m,e $25 per pair per month for them, and if the mules were killed and destroyed during the time he was to pay me for the mules at a stated bargain. My agreement with Mi. Harmon was that if these mules were killed, he was to pay me $275, and they were to be his mules; yes, sir, that was the price agreed upon.”

George I-Iarmon testified substantially, as to his trade with Turner, as'Turner testified.

The testimony is in sharp conflict as to the ownership of the mules at the time they were killed; and therefore it would have been error for the court to have instructed a verdict in accordance with appellant’s special charge No. 1, and appellant’s first assignment of error is overruled.

Appellant’s second, third, and fourth assignments of error are each to the effect that the verdict of the jury is not warranted by the evidence as to ownership of the mules; that the evidence is not suflicient to support the finding of the jury; that the vast preponderance of the evidence is contrary to the finding of the jury, and are disposed of under one head. There being conflict in the evidence on this issue, and the jury having answered the same, it is not the province of this court to disturb its finding. The second, third, and fourth assignments are overruled.

The fifth, sixth and seventh assignments of error are abandoned by the appellant.

Appellant’s eighth and ninth assignments are properly grouped in its brief in one assignment, and we so consider them. They are that the verdict of the jury for $212.50 each for the mules killed is not supported by the evidence, and contrary to a vast preponderance of the evidence. The evidence is conflicting as to the value of the mules. The jury found their value, under proper issues submitted to it, and it is not the province of this court to disturb such finding, and appellant’s eighth and ninth assignments are overruled.

The tenth assignment is:

“The court erred, to the prejudice of the defendant, in refusing to submit to the jury special issue No. 6, reguested by defendant.”

Special issue No. 6, asked by appellant, reads as follows:

“Gentlemen of the jury, when, under the agreement between plaintiff and George Harmon, were the mules sued for to become the property of said George Harmon? Answer this question in your own language, and write your answer on the hack hereof.”

It would have been error for the court to have given this special requested issue to the jury. It assumed a sale, and required the jury to find a sale, indirectly.

The tenth assignment is overruled.

The eleventh assignment of error is fatal, and requires a reversal of this case. Article 1957, Vernon’s Sayles’ Civil Statutes, provides:

“The jury may take with them in their retirement the charges and instructions in the cause, the pleadings and any written evidence, except the depositions of the witness. # * *”

Before the plaintiff could recover in this case, he had to establish the ownership of the mules and show, by a preponderance of the testimony, that he was the owner of the mules at the time they were killed. In his written statement he said positively that he had sold the mules to Harmon for $275 each, and that he had made this sale about three months before the mules were killed. Appellant insisted upon that written statement being delivered to the jury for their consideration in their retirement. It was proper matter for the jury to take with them, in their retirement, as when appellant’s counsel made the request that the jury should take such statement, the court refused this statutory right. The only answer made by appellee to this proposition is that the error committed by the court is harmless error. It is difficult, sometimes, to say just what.constitutes harmless error, but we are soundly of the opinion that in this case it could not be considered harmless error. The burden was upon appellee, Turner, to establish the property as his own before he could recover. His written statement and his oral testimony are in conflict with each other. Can it be said that the jury would have rendered the same verdict, as to the ownership of the mules, it did render if it had been permitted to take Mr. Turner’s written statement with it, to consider in its retirement. We cannot say whether such would have been the ease. The right is statutory, appellant insisted upon this right, and it was refused by the honorable trial court, and for the error committed the case must be reversed and remanded. In addition to the statute above cited, see S. A. & A. P. Ry. Co. v. Barnett, 12 Tex. Civ. App. 321, 34 S. W. 129; Sargent v. Lawrence, 16 Tex. Civ. App. 540, 40 S. W. 1075; Davis v. M., K. & T. Ry. Co., 17 Tex. Civ. App. 199, 43 S. W. 44; Biard & Squares v. Tyler Building & Loan Ass’n, 147 S. W. 1168; Curtsinger v. McGown, 149 S. W. 303.

Reversed and remanded.

On Motion for Rehearing.

Appellee’s counsel ardently insists that we have committed error in reversing and remanding this case, on the ground that the trial court refused to permit the jury to take with them in their retirement certain evidence, and cites with confidence rule 62a (149 S. W. x), governing the Courts of Civil Appeals, and the following authorities under said rule: T. & B. V. R. R. Co. v. Voss, 160 S. W. 663; So. Kans. Ry. Co. v. Shinn, 153 S. W. 640; I. & G. N. Ry. Co. v. Walters, 165 S. W. 525; Owens v. State Bank of Bronte, 165 S. W. 798. The last citation is an error. We have carefully read all of the authorities cited, but we fail to find such authorities supporting appellee’s contention, and, so far as we have been able to ascertain, there is no decision by any of the appellate courts of this state which holds that a plain violation of a statutory right is harmless error; indeed, we think the authorities cited are rather against appellee’s contention than supporting it. A quotation from, perhaps, the strongest authority presented by appellee in his motion for rehearing will prove this view. In the case of Southern Kansas Railway Company of Texas et al. v. Shinn, 153 S. W. 640, it is to be noted that the appellate court, in passing upon motion for rehearing, used the following language:

“Of course, in no event would this court apply the right where a plain and palpable error had been committed in violation of a statute affecting the substantive rights of a litigant; and, where such a condition is presented, the fundamental law necessarily would overcome the rule” (citing Schuette v. Bishop, 153 S. W. 377).

We think the trial court could have, with as much propriety, refused the jury the privilege of taking with them, in their retirement, the charge of the court, or the pleadings of the parties, or, as to that matter, both. The statute is plain and unmistakable that the documentary evidence was proper matter for the jury to have in its retirement. The appellant asked that the jury be permitted to take such evidence with it in its retirement. The trial court refused appellant’s request, and did not permit the jury to take with it, in its retirement, a paper that the plain letter of the law says it may have.

The ownership of the mules was a closely contested issue in this ease. George Harmon, at the very time of the trial, had a claim pending for damages for these very mules. Such being the case, we are unable to see any force in appellee’s contention that the error was harmless.

The motion for rehearing is overruled.
      <@^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    SOUTHERN KANSAS RY. CO. OF TEXAS et al. v. HUGHEY.
    (No. 881.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 26, 1916.)
    1. Appeal and Error <&wkey;1033 — Review — Harmless Error.
    In an action to recover the value of hogs, which died in transit, and for damages to the remainder, admission of evidence as to the value of the hogs at the point where the dead ones were removed is harmless, though erroneous, where evidence showed the value of such animals at the point of destination was greater than their value at such intermediate point.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <&wkey;> 1033.]
    2. Carriers ■ <&wkey;228 — Carriage of Live Stock — Actions—Error.
    In an action to recover for the death of hogs in transit and injury to remainder of the shipment, the measure of damages is the market value, if there be one, at the point of.destination; but testimony of the weight of the dead hogs which were removed at an intermediate point, together with the testimony of the value at that point, and the value at point of destination, which was greater, is admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. @=>228.]
    3. Carriers &wkey;>229 — Carriage of Live Stock — Actions—Measure of Damages.
    Where hogs died in transit, the measure of damages is their market value at point of destination, or, in case there was no market value, their intrinsic value at such point.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. &wkey;229.]
    4. Evidence &wkey;>474 — Opinion Evidence — Admissibility.
    Plaintiff, who had shipped hogs a number of times, may testify as to the normal shrinkage of hogs resulting from shipment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. &wkey;474.]
    5. Pleading <&wkey;412 — Reply — Failure — Waiver.
    In an action for the death of part, and injury to the remainder, of a shipment of hogs, where the railway company, which pleaded that it was the duty of the shipper to properly feed, water, and care for the hogs en route, went to the trial without objecting to the shipper’s failure to controvert the answer, its right to insist that the averments of the answer should be taken as confessed was waived.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. &wkey;412.]
    6. Carriers &wkey;>218 — Carriage of Live Stock — Defenses.
    The agreement that a shipper should care for animals in transit is no defense to an action for damages to the same, unless the railroad company showed adequate facilities were provided, and the agreement was reasonable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. &wkey;>218.]
    7. Appeal.and Error <&wkey;664r — Bill of Exceptions — Statement of Facts.
    Where there is a conflict between a bill of exceptions and statement of facts as to the proceedings at trial, the statement controls.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. &wkey; 664.]
    8. Carriers &wkey;>218 — Carriage of Live Stock — Agreements—Reasonableness.
    A stipulation in a contract for shipment of live stock that the shipper would load the stock, care for and attend them while they were in the stockyards, and that the carrier should not be liable for any loss or damage while the stock were in the shipper’s charge, is invalid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;>218.]
    9. Carriers <&wkey;218 — Carriage of Live Stock — Defenses.
    An agreement requiring the shipper to inspect the cars, and accept them if in good condition, and declaring that, in the event of failure, it shall be conclusively presumed that the cars were suitable, is void.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;>218.]
    10. Carriers &wkey;>218 — Carriage of Live Stock — Stipulations—Validity.
    Under Rev. St. arts. 708, 710, forbidding a carrier from limiting its responsibility otherwise than it existed at common law, a stipulation in a contract of shipment that the shipper could not hold the railroad company liable for injuries to live stock because of beat, suffocation, or other results of being’ overcrowded in the cars, and that any injury should be presumed to have resulted from overloading, is invalid.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ G74-09G, 927, 928, 933-949; Dec. Dig. <&wkey;218.]
    11. Carriers t&wkey;218 — Contracts oe Parties.
    An agreement in a contract for the shipment of live stock that suit should not be brought atter G months is invalid, under Vernon’s Kuyles’ Ann. Oiv. St. 1914, art. 5713, declaring that it shall be unlawful for any corporation to enter into any contract by reason whereof the time in which to sue is limited to less than 2 years.
    [Ed. Noto. — Por other cases, see Carriers, Cent. Dig. 674^696, 927, 928, 933-949; Dec. Dig. <&wkey;218J
    12. Carriers <&wkey;218 — Carriage oe Dive Stock.
    Lnder Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, declaring that no stipulation in any contract requiring notice to be given of claim for damages as a condition precedent to the right to sue shall be valid, unless the stipulation is reasonable, a stipulation in a contract for the shipment of live stock, requiring presentation of claim to be made within 91 days is no defense, and cannot be relied on, unless its reasonableness be pleaded.
    LEd. Note. — Eor other cases, see Carriers, Cent. Dig. G7CM3SG, 927, 928, 933-949; Dec. Dig. <&wkey;218.]
    13. Carriers <&wkey;227 — Carriage oe Live Stock — Actio h s — Presumptions .
    tinder Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, declaring that it will be presumed that notice of claim has heen given, unless want of notice has been specially pleaded under oath, evidence that notice of claim for injuries to a shipment of live stock had not been given within the time fixed in the contract of shipment cannot be received, where a want of notice was not especially pleaded under oath. [Ed. Noto. — Eor other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. &wkey;227.1
    14. Carriers <&wkey;227 — Carriage of Live Stock — Evidence—Admissibility.
    In an action for injury to shipment of live stock, a contract of shipment, part of the stipulations of which were void, and the other portion of which were not properly pleaded, is properly rejected.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. &wkey;227.]
    15. Carriers <&wkey;280 — Carriage of Live Stock — Actions.
    Where a shipper of live stock sought recovery for negligent delay, as well as mishandling, a charge that, if the shipment was forwarded on the first train, there could be no recovery, is erroneous, because disregarding other negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 0G1, 9G2; Dec. Dig. &wkey;230J
    16. Carriers <&wkey;213 — Carriage of Live Stocic.
    Though the market price was higher on the day the shipment reached the point of destination than on the day it should have reached there, the carrier is not entitled to a peremptory instruction, where the shipper sought recovery, not only for depreciation of the market, but on account of shrinkage of animals by reason of delay.
    [Ed. Note. — For other cases, see Carriers, ■Cent. Dig. §§ 920-922; Dec. Dig. &wkey;213J
    17. Appeal and Error &wkey;>930 — Review — Presumption.
    Where the verdict was general, and it appeared that, as to some of tlio claims of recovery, plaintiff was not entitled, it will be presumed on appeal that no part of the recovery was on account of such claim.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey; 930.]
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by I. D. Hughey against the Southern Kansas Railway Company of Texas and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Hoover & Dial, of Canadian, Turner & Rollins, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellants. Kim-brough, Underwood & Jackson, of Amarillo, for appellee.

       Rehearing denied.

   HALL, J.

Appellants call our attention to the fact that in disposing of the sixth assignment we announced the rule with reference to the admission of the shipping contract in evidence as it has been declared in the motion for rehearing in G., C. & S. F. Ry. Co. v. Winn Bros., 178 S. W. 698. The correct rule is stated in the original opinion of that caso, as is held in Scott v. Townsend, 166 S. W. 1138, and Jamison v. Dooley, 98 Tex. 206, 82 S. W. 780. The original opinion is therefore withdrawn, and this is substituted:

Appellee sued the Southern Kansas Railway Company of Texas and the Ft. Worth & Denver City Railway Company of Texas, for damages growing out of the shipment of two cars of hogs, from Pampa to Ft. Worth, Tex. It is alleged that four hogs of the first shipment and three of the last died in transit, and damages are claimed to the remainder, hy reason of rough handling, delay, and decline in the market. The Southern Kansas Railway Company denied that it was guilty of any negligence, and by way of special answer pleaded that the shipments moved under written contracts, the fourth paragraph of which provided that the shipper should, at his own cost and expense, proiierly bed the cars in which the hogs were to be transported ; that the carrier should not be responsible for any loss or damage that might result because of heat, suffocation, or other results of being crowded into the cars; that by the fifth paragraph of the contract it was provided that the shipper would, at his own risk and expense, load the stock, take care of and attend the same while they were in the stockyards awaiting shipment and while being loaded, and agreed that the company would not be liable for any loss or damage to said stock while being in the shipper’s charge, or so eared for and attended to by him. The stipulation providing for notice in writing ¡ within 91 days after the damage accrued was also set up, and the ninth paragraph of the contract, limiting the right to sue to 6 months after the loss or damage had accrued. Plaintiff did not file any supplemental petition.

The Ft. Worth & Denver City Railway Company also pleaded that it forwarded both said shipments on the first through train from Amarillo after the receipt of the ear from its codefendant, that they were forwarded to Ft. Worth as promptly as same could be done, and that there was no decline in the market from the 8th day of September to the 9th of September, the date of the first shipment, or from the 24th of November to the 25th of November, the date of the last shipment.

It is. urged under the first assignment of error presented in the brief of the Southern Kansas Railway Company that the court erred in not sustaining the defendant’s objection to the testimony of the plaintiff with reference to the market value of the hogs at Amarillo on their arrival. Reference to the statement of facts shows that the market value of the hogs at Ft. Worth, the destination of the shipments, was also established, and, so far as we know, the verdict is based upon the market value at Ft. Worth. No injury is shown by the admission of this evidence. Appellants could not have been injured, since the uncontradicted testimony shows that the value at Ft. Worth was greater than, as stated by the witness, the market value at Amarillo.

Under the second assignment it is urged that the court erred in not sustaining the objections to plaintiff’s testimony with reference to the value of the hogs which died at Amarillo. It is true that the measure of damages is the market value if there is one, and if not then the intrinsic value of the hogs at the point of destination, and not at any intermediate point where they may have died. This was not ’an action for conversion. I. & G. N. Ry. Co. v. Parke, 169 S. W. 397; Railway Co. v. Chittim, 40 S W. 23. Reference to the statement of facts shows that the witness testified as follows:

“I was acquainted with the value of hogs at that date. I was acquainted with the market value of hogs on or about the 7th day of September, 1913. The hogs would have brought a little less in Amarillo than at Ft. Worth on that date. At Amarillo they were worth about $8.75 a hundred. I know what they would have been worth at Ft. Worth. We sold other hogs similar to these that were in the same shipment at Ft. Worth. The market value of these hogs at Ft. Worth was $8.95 a hundred. The four dead hogs were weighed in Amarillo. They weighed 925 pounds.”

We think .this testimony was admissible, and the second assignment is also overruled.

The third assignment is that the court erred in admitting the testimony of the plaintiff with reference to the usual amount of shrink in a run from Pampa to Ft. Worth. It is insisted under this assignment that the witness was not qualified. He testified that he had heretofore engaged in shipping hogs from Pampa to Ft. Worth and other places; that in a shipment over that distance they naturally suffered a certain amount of shrinkage; that he had made between six and ten shipments previous to the one in question, and based upon his experience he knew the usual and necessary shrinkage of a hog shipped from Pampa to Ft. Worth, over the two lines of railway involved in this suit; that an ordinary 200-pound hog would shrink about 5 pounds. We think this witness was qualified to testify on this point. Appellants’ own witness, Curtis, placed the usual amount of shrink at á larger figure.

It is urged by the fourth assignment that the court erred in permitting the plaintiff to testify that the reason he did not properly prepare the cars for shipping was because the railway company did not furnish bedding and proper facilities for doing so, when that issue was not raised by a supplemental petition. Under this assignment it is insisted that the allegations in the answer should have been taken as confessed. It is too late to insist upon such a course in this .court. The failure of appellee to answer under oath and controvert the facts alleged by appellants was waived by proceeding to trial in the county court. Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309. It was the duty of appellant to not only plead that term of the contract requiring plaintiff to feed, water, and care for hogs en route, but their allegation should have shown that adequate facilities were provided, and that the stipulation under the circumstances was reasonable. Having failed to do so, this term of the contract was void. G., C. & S. F. Co. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 767.

Appellants assert that the court erred in permitting the witness Curtis, on cross-examination, to testify that he had made a shipment, had put in a claim for damages for excess in shrinkage and for delay, and that appellants had paid the same. We find no such evidence in the statement of facts, though the bill of exception recites that it was submitted. In a conflict between a bill of exceptions and the statement of facts signed by both parties and duly approved by the court, the latter controls. Coker v. Cooper’s Estate, 176 S. W. 145.

It is insisted under the sixth assignment that the court erred in excluding from evidence the written contracts of shipment. Plaintiff’s petition seeks to recover upon the common-law liability of the carriers. In their answers they set up that the shipments were made under written contracts. The fifth paragraph, which provides that at his own risk and expense the shipper will load the stock, take care of and attend the same while they are in the stockyards and being loaded, and that the company shall not be liable for any loss or damage while the stock are in the shipper’s charge, and so cared for and attended by him, has been declared to be a void, stipulation. P. & N. T. Ry. Co. v. Brooks, 145 S. W. 649.

The fourth paragraph of the shipping contract, which binds the shipper at his own cost to bed the cars, and put them in proper condition for shipment, and inspect and accept them if in good condition, and if not to report the fact to the station agent in writing, and in the event he should fail to do so then that it shall be conclusively presumed that the cars were suitable, has been declared to be a void stipulation. I. & G. N. Ry. Co. v. Parish, 18 Tex. Civ. App. 130, 43 S. W. 1006. The plaintiff testifies without contradiction that the company furnished no facilities for bedding the cars or watering the hogs. The answer does not allege that the appellee was given an opportunity to bed them. In this state of the pleadings, the fourth paragraph of the shipping contract is unquestionably void. G., C. & S. F. Ry. v. Boger, 169 S. W. 1095; Texas Central Ry. Co. v. McCall, 106 S. W. 925; 4 Elliott on R. R. § 1548b.

The fourth paragraph has intermingled with the other provisions a stipulation that the shipper will not hold the company responsible for any damage that may result because of heat, suffocation, or other results of being crowded in the cars, and that any injury or damage to said stock while in transit shall be presumed to have resulted from overloading, for which the company shall in no respect be liable. This stipulation is clearly a violation of the statute (Rev. St. arts. 708 and 710), which forbids a carrier from limiting its liability otherwise than as it exists at common law. Pecos & North Texas Ry. Co. v. Brooks, 145 S. W. 649; I. & G. N. Ry. v. Parish, supra; 4 Elliott on R. R. § 1511.

The fifth paragraph, binding the shipper at his own risk and expense to attend to the stock while in the stockyards of the company awaiting shipment, or while they are being loaded, clearly has no application to the facts of this case.

The eighth paragraph, which appellant attempted to plead, bound the shipper to give notice in writing of claims for damages to some officer of the company or nearest station agent before the stock were removed from the place of destination, and before they were slaughtered or intermingled with other stock, and not to remove the stock from the stockyards until the expiration of three hours after giving of such notice,' and further provided that no damages should be recoverable unless a written claim therefor had been presented to the company within 91 days after the damage occurred. The ninth paragraph provides that no suit shall be sustained in any court unless it has been commenced within 6 months after the loss or damage occurred. Article 5713 of Vernon’s Sayles’ Civil Statutes provides that it shall be unlawful for any corporation to enter into any contract by reason whereof the time in which to sue thereon is limited to a shorter period than 2 years. This article of the statute disposes of the ninth paragraph of the shipping contract.

Article 5714 provides that no stipulation in any such contract,, requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon, shall ever be valid unless such a stipulation is reasonable. Appellant failed to allege that the 91-day stipulation was reasonable. It is further provided in said article 5714 that in any suit brought under this and the preceding article it shall be presumed that notice had been given, unless the want of notice is especially pleaded under oath. The appellant in this case did not plead the want of notice under oath, and the presumption that notice was given is conclusive, and any evidence in relation thereto was inadmissible. By reason of the defective pleadings of the appellant, and the fact that the stipulation contained in the fourth and fifth paragraphs of the shipping contract have been declared void, the court did not err in sustaining the appellee’s objection and excluding the contract.

The brief of the Southern Kansas Railway Company presents no reversible error.

By reason of the fact that the assignments presented in the brief of the Ft. Worth & Denver City Railway Company raise in several instances the same questions presented in the brief which we have just considered, it will not be necessary to discuss all of the Ft. Worth & Denver City Railway Company’s propositions.

It is insisted by this appellant that the court erred in refusing to instruct the jury that if they should find from the evidence that the Ft. Worth & Denver City Railway Company forwarded the car of hogs in question on the first through train from Amarillo to Ft. Worth after the receipt of the shipment from its connecting carrier, and that each of said cars of hogs reached the first market that same could have reached after the time for the departure of this defendant’s first, train after the receipt of such hogs, to return a verdict for the defendant. This is not a correct charge, because appellee would be entitled to recover if appellant was guilty of negligence, even though the shipments did move to Ft. Worth on the first scheduled train after their arrival in Amarillo K. C., M. & O. Co. of Texas v. Beckham, 152 S. W. 228. The charge would have further been erroneous because delay in transporting the cars was not the only ground upon which recovery was sought.' They may have been injured by delays and rough handling at intervening points on the line of this appellant’s road. G., C. & S. F. Ry. Co. v. Ideus, 157 S. W. 173.

It is further contended by appellant that because the market price at destination was higher on the day in which the respective shipments arrived at Ft. Worth than it was on the previous day, when they should have reached the market, that the court should have peremptorily directed a verdict for appellants. The effect of this evidence was to deny appellee a right to recover upon his allegation that the market declined during the delay, but in no way affected his right to recover for shrinkage and loss of weight by reason of the delay, and a peremptory instruction should not therefore have been given. The verdict is a general one in favor of appellee for a stated amount against each of the appellants, and we must presume in support of the judgment that no part of the recovery was by reason of a decline in the market.

The judgment is affirmed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    BARTON v. JACKSON.
    (No. 8297.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 18, 1915.)
    1. Justices oe the Peace &wkey;>127 — Setting-Aside Void Judgment.
    A justice’s judgment being void, he can set it aside at any time; the statutes prescribing the conditions on which a justice may set aside a judgment and grant a new trial having no application.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 401; Dec. Dig. &wkey;*127.]
    2. Justices oe the Peace &wkey;>127 — Setting Aside Judgment — Further Peoceedings.
    A justice having rightfully set aside a judgment by default, the case is properly before him for further proceedings.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 401; Dec. Dig. <§¿> 127.]
    Appeal from Denton County Court; Fred M. Bottorff, Judge.
    Action by Shell Jackson against E. C. Barton for injunction. Judgment for plaintiff, and defendant appeals.
    Judgment vacated, and suit dismissed.
    Robt. H. Hopkins, of Denton, for appellant. Luther Hoffman and Sullivan & Hill, all of Denton, for appellee.
   DUNKLIN, J.

E. C. Barton, justice of the peace of precinct No. 2, Denton county, has prosecuted this appeal from a final judgment in favor of Shell Jackson perpetually enjoining appellant, as such justice of the peace, from issuing any process for the enforcement of a judgment rendered by him against Jackson in favor of one J. F. Big-gerstaff in cause No. 723 in said justice court, also restraining the justice of the peace from again trying that suit or entering any further order pertaining thereto. No statement of facts is contained in the record before us; but, according to the allegations in Jackson’s original petition, the suit in the justice court was for forcible entry and detainer instituted by Biggerstaff against Jackson, and judgment was rendered in plaintiff’s favor by default, in defendant’s absence, without any answer from him, without proof, at a special term of the court and not on the first day of the regular term to which the service upon defendant was returnable. Jackson alleged that by reason of those facts the judgment against him was void. After service of a temporary writ of injunction upon him restraining him from issuing a writ of restitution on that judgment, the justice of the peace filed an answer admitting that the judgment was void and alleging that he had since set it aside, and had reset the ease for trial. By supplemental petition in reply to the answer, Jackson admitted that the judgment had been set aside, but alleged that such order was made in the absence of any motion for a new trial or appeal, some 12 days after the date of judgment when the justice had lost jurisdiction over the case and was without legal authority to vacate the judgment. By reason of those facts, Jackson contended that the judgment by default was final, and he prayed that upon final hearing the justice be perpetually restrained, not only from issuing process upon the judgment, but also from taking any further action or making any further orders in the case.

If the judgment was void, as contended by both parties, then the same was a nullity and could be set aside at any time; and the statutes prescribing the conditions under which a justice may set aside a judgment and grant a new trial have no application. This is a well-settled rule as shown by our decision in G. C. & S. F. Ry. v. Wilshire, 178 S. W. 43, and authorities there cited. See, also, Milam County v. Robertson, 47 Tex. 222.

The justice having rightfully set aside the judgment by default, the case is properly before him for further proceedings, and the final judgment of the county court perpetually restraining him from taking any further cognizance of the case was erroneous.

Accordingly, the judgment from which this appeal is prosecuted is vacated, and the suit is dismissed.