author: WALTHALL, J.

text:
    BALDWIN et al. v. JORDAN et ux.
    (No. 358.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1. Pledges (§ 57) — Action to Foreclose— SUFFICIENCY OE PETITION.
    In an action on a principal note for the amount shown to be due and for attorney’s fees provided therein, less the .credits, and for a foreclosure of the plaintiff’s lien upon a note given as collateral security and for an order for its sale, the petition was not insufficient because it did not allege that the collateral note was ever presented to the payor for payment, or that payment thereof was ever refused.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 184, 185; Dec. Dig. § 57.]
    2. Pledges (§ 57) — Action to Fokeclose— Sufficiency of Petition — Defensive Matters.
    In such action, the petition was not insufficient because it did not allege that the payor of the collateral note had not paid it to plaintiff, or that defendants were not entitled to any credit on the. principal note sued on, by reason of any payment on the collateral note, since such payments were defensive matters.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 184, 185; Dec. Dig. § 57.]
    3. Pledges (§§ 21, 30) — Collateral Note-Rights of Parties.
    When a collateral note has been indorsed and delivered, the pledgee is the legal owner of it to the extent of the debt, and the pledgor is the owner of the remainder, and the pledgee is entitled to collect the note, though he must use diligence in doing so.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 45, 184, 185; Dec. Dig. §§ 21, 30.]
    4. Pledges (§ 57) —Enforcement—Parties.
    In an action on a note for the amount shown to be due, and for attorney’s fees provided therein, less the credits, and for a foreclosure of the plaintiff's lien upon the collateral notes and a sale thereof, the payor of the collateral note, who indorsed it in blank, was not a necessary party defendant to the suit on the principal note.
    [Ed. Note.- — For other cases, see Pledges, Cent. Dig. §§ 184, 185; Dec. Dig. § 57.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by 6. W. Jordan and wife against J. C. Baldwin and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Stevens & Stevens, of Liberty, and Baldwin & Baldwin, of .Houston, for appellants. J. V. Meek, of Houston, for appellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

On February 7, 1911, appellants Jacob C. Baldwin and Charles H. Taylor executed and delivered to appellee Mrs. Cora Jordan, wife of appellee G. W. Jordan, a promissory note for $1,239, due in six months from date, promising interest and attorney’s fees on failure to pay the note or interest when due, should the note be placed in the hands of an attorney for collection, or if collected by legal proceedings, and any judgment rendered to bear 10 per cent, interest. The note further pledged, as collateral security for the payment of the principal note, one note for $2,140, made by IC H. Whitmire to Jacob C. Baldwin, of date February 1, 1910, due in two years, and secured by vendor’s lien on real estate. The note further provided that in the event of default in its payment at the option of Mrs. Cora Jordan, or holder, the note should become due and payable, and that, upon default of payment at maturity, Mrs. Cora Jordan was authorized and empowered to sell the collateral Whitmire note, either at private sale or,at public auction at her option, for the purpose of paying the note." Should the collateral note be sold at auction, three days’ notice of the time and place of sale should first be given, as provided in the note, all costs to be charged to the makers of the note, and, on a sale, the holder could become the purchaser of the collateral note, if the highest bidder. The note then made further provision for costs in event of any litigation on the collateral note. On March 27, 1913, ap-pellees brought suit on the principal note for the amount shown to be due and for attorney’s fees, less the credits indorsed on the note, and asked for a foreclosure of the pledg-ee’s lien upon the collateral note and for order of sale and for general and special relief. Jury was waived. The court overruled defendant’s exceptions, heard the evidence, and rendered judgment for plaintiffs.

Appellant’s first assignment of error complains of the order of the court in overruling their special exception to plaintiffs’ petition because it failed to allege that the collateral note was ever presented to the payor, Whitmire, for payment, or that payment thereof was ever refused. If the suit had been on the collateral note or some reason shown in plaintiff’s petition why demand should have been made on the payee of the collateral note by the holder, the exception might have been well taken; but the petition shows none, and appellants have pointed out none. The assignment is overruled.

The second assignment is to the effect that the court should have sustained their exception to plaintiff’s petition, because it did not allege that Whitmire had not paid to plaintiff the collateral note or that defendants were not entitled to any credit on the note sued on by reason of any payment on the collateral note. Whether the note sued - on or the collateral note had been partly paid or fully paid were defensive matters and need not be alleged by the plaintiff. The appellants, under their first proposition under this assignment, state correct propositions of law, but have no application to the assignment. It is elementary that, when a collateral note has been indorsed and delivered, the pledgee is the legal owner of it to the extent of the debt, and the pledgors are owners of the remainder, and that the pledgee is entitled to collect the note and must use diligence to do so, but there is nothing in these principles of law that necessitate or even suggest the propriety of the holder of the collateral note to make any statement at all, in suing on the principal note, with reference to it, more than the fact of the pledge, the lien given by reason thereof, and a prayer for the foreclosure of the pledgee’s lien. A pleader may, if he prefers to do so, show all credits the defendants are entitled to, and, if the collateral note is then due, may embrace it in his suit and ask a foreclosure of the vendor’s lien, but he is not required to do so.

By defendant’s third and fourth assignments they claim that Whitmire, the payor of the collateral note, was a necessary party defendant in the suit on the principal note, and, if not a necessary party, then a proper party, and complain that the court should have given them permission to make Whitmire a party defendant, in order that all matters between plaintiffs and defendants and Whitmire might be adjusted, and that AVhitmire in that suit might have an opportunity to foreclose the vendor’s lien expressed in the collateral note. We have carefully examined defendant’s first amended original answer, and find no facts alleged which to us would seem to justify the trial court in delaying the plaintiff’s suit in order to bring in Whitmire, and require the plaintiffs, if the court could properly do so, to sue on the collateral note and adjust the equities, if any, between the defendants and AVhitmire, and to foreclose the vendor’s lien expressed in the collateral note. The collateral note was indorsed in blank by the payee, and we must look to the principal note described above to see the parties’ agreement with reference to it. Unless Whit-mire was a necessary party to the suit on the principal note, the court’s ruling was correct. To hold that Whitmire was a necessary party to a suit on the principal note would be to hold that the holder of the principal note could not elect to sue on it without, also, at the same time, suing on.the collateral note. We do not so understand the law, and the appellants have referred us to no authority so holding. .Appellants refer us to the case of East Texas Eire Ins. (Jo. v. Coffee, reported in 61 Tex. at page 287. The point contended for here is not found or decided in that case. That was an action brought by Coffee to recover on a policy of insurance against fire issued by the insurance company to Coffee' & Pearson, which, with the iconsent of the insurance com-' pany, was transferred by Coffee & Pearson to Coffee. The action was brought by Coffee in his own name and right as the owner of the policy, but the evidence developed the fact that, after the loss, Coffee assigned the policy to Seeligson & Co., probably as collateral security for a debt due by him to thát company. The court held in that case in the language quoted by appellants in their brief:

“A debtor is entitled to have before the court, before a judgment can be rendered against him, such person or persons as plaintiffs as will make the judgment conclusive of the rights of all parties who have an interest in the debt, and he thus be relieved from further costs, vexation, or liability.”

We do not think that case conflicts with our holding in this. The cases appellants refer us to as authorities on the proposition under consideration are cases where suits were brought on the collaterals held, or where separate suits on the principal debt and on the collateral were pending in the same court, and a consolidation of the two was ordered by the trial court. In their fifth and sixth assignments, appellants complain that they should have been allowed the credits shown on the principal note and on the collateral note, which was not done. We have made the calculation as near as we can, and find that the credits were all allowed, with a small margin in appellee’s favor.

The case is affirmed.


source: Caselaw Access Project

author: HADD, J. Appellee,

license: Public Domain

text:
    WINKIE v. CONATSER.
    (No. 658.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Execution (§ 171) — Restraining Enforcement oe Execution — Adequacy of Remedy at Law — Statutes.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, authorizing an injunction where a cloud will be put on real estate by a sale on execution against one having no interest in the property, the adequacy of plaintiff’s remedy at law in a case within the statute is no’ objection to relief.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.]
    2. Execution (§ 171) — Restraining. Saxe on Execution — Grounds.
    Equity will enjoin a sale of land, title to which is in a husband, under execution against his wife, where parol evidence is necessary to show that she was not sued for necessaries furnished her or her children, and that the property was not purchased with her separate earnings, and will cancel the execution as cloud on title.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.)
    3. Husband and Wife (§ 262) — 1Title—Con-veyance to Husband — Community Property.
    Land conveyed to a husband is prima facie community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.]
    4. Husband and Wife (§ 268) — Liability of Husband for Wife’s Debt — “Necessaries.”
    A debt due’ from a wife for commissions for an exchange of her separate property is not for “necessaries,” within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4624, declaring that neither the separate property of the husband nor the community property other than the' personal earnings of the wife and the income from her separate property, shall be subject to the payment of debts contracted by her, except for “necessaries” furnished her or her children, and community property is not liable therefor.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. § 268

    Eor other definitions, see Words and Phrases, First and Second Series, Necessaries.]
    5. Statutes (§ 115) — Title—Sueetciency.
    The title of Acts 33d Deg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), “An act to amend articles 4621, 4622 and 4624 * * * concerning the marital rights of parties, defining separate and community property * * * conferring upon the wife the power to make contracts,” etc., meets the requirement of Const, art. 3, § 35, declaring that no bill shall contain more than one subject, which shall be embraced in the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 150, 151; Dec. Dig. § 115.]
    Appeal, from District Court, Hemphill County; F. P. Greever, Judge.
    Action by W. J. Conatser against H. J. Winkie and another. From a judgment perpetuating the injunction, defendant named appeals.
    Affirmed.
    Fisher & Palmer, of Canadian, for appellant. Hoover & Hoover, of Canadian, for appellee.

      For’ollier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HADD, J. Appellee,

Conatser, filed this suit in the district court of Hemphill county, seeking to restrain C. H. Tipps, the sheriff of said county, from selling certain real estate, which had been levied upon by virtue of an execution issued out of the district court of Hemphill county, upon a certain judgment rendered on the 6th day of September, 1913, against Mrs. Mary A. Conatser, wife of the plaintiff, and in favor of the appellant, Winkie. The judgment upon which this execution was issued was based upon a judgment recovered in January, 1913, by H. J. Winkie against Mrs. Conatser, in Stanislaus county, Cal. The California judgment was recovered by Winkie for certain commissions alleged to be due him as a real estate broker in the exchange of certain property situated in California, and belonging to Mrs. Conatser. Appellee was made a party defendant pro forma, but neither of the judgments were rendered against him personally. From a judgment perpetuating the injunction this appeal is prosecuted.

Appellant first contends that the injunction herein should not have been granted because it appears from the petition that the plaintiff had an adequate remedy at law for the injuries complained of. Article 4643, Vernon’s Sayles’ Civil Statutes, provides that judges of the district and county courts may grant writs of injunction in the following cases:

“(3) In all cases where the applicant for such writ may show himself entitled thereto under the principles of equity, and as provided by statutes and all other acts of this state, providing for the granting of injunctions, or where cloud would be put on the title of real estate being sold under an execution against a person, partnership or corporation, having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.”

The fact that the applicant for injunction had an adequate remedy at law was formerly a sufficient ground under the decisions of this state for denying him relief in equity. The above-quoted statute was enacted to change this rule. By the express provisions of paragraph 3, if the title to his real estate is about to be clouded, he is now entitled to his writ of injunction, “irrespective of any legal remedy at law.” Lakeside I. Co. v. Kirby, 166 S. W. 717; Houston Oil Co. v. Davis, 154 S. W. 337; Acme Cement Plaster Co. v. American C. P. Co., 167 S. W. 185.

It is said, in Texas Land & Mortgage Co. v. Worsham, 5 Tex. Civ. App. 245, 23 S. W. 938, that if a judgment is on its face valid and is a subsisting lien on lands requiring extrinsic and parol evidence to defeat it, equity will enjoin execution thereunder and order its cancellation as a cloud on the title. This seems to be the rule announced by the great weight of authority. Under article 4624, Vernon’s Sayles’ Civil Statutes, neither the separate property of the husband' nor the community property, other than the personal earnings of the wife, and the income, rents, and revenues from her separate property, shall be subject to the payment of debts contracted by her, except those contracted for necessaries furnished her or her children. Neither the California judgment nor the judgment rendered in Hemphill county, upon which this execution was issued, shows the nature of the original debt upon which suit was instituted against Mrs. Conatser. Parol evidence is therefore necessary to establish the fact that she was not sued for necessaries furnished her or her children, and that the property was not purchased with her separate earnings, thus bringing it within the rule announced in Texas Land & Mortgage Co. v. Worsham, supra. The land upon which the execution had been levied was conveyed to appellee, and was prima facie community property.

The trial court did not err in holding that the debt due from Mrs. Conatser to appellant as commissions for the exchange of her separate property in California could not be classed as a debt for “necessaries” within the meaning of the statute.

We think the title of Act 33d Leg., pp. 61 to 63, c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 4621, 4622, 4624), meets the requirements of article 3, § 35, of the. Constitution. Taggart v. Hillman, 42 Tex. Civ. App. 71, 93 S. W. 245; Focke v. State (Cr. App.) 144 S. W. 267; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736.

We find no reversible error in the record, and the judgment is affirmed.


author: CARL, J. Appellee,

text:
    SAN ANTONIO & A. P. RY. CO. v. GRADY.
    (No. 5364.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1914.)
    1. Teial (§ 191) — Instructions—Evidence.
    Where, in an action against the initial carrier for negligent handling and delay in transportation, the shipper testified that he made a contract for through shipment, while the carrier introduced a bill of lading limiting its liability to damages accruing on its own line and showed no damage or delay occurred on its line, a charge that the contract was for through shipment was on a material issue and assumed a controverted fact.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.] ■
    2. Carriers (§ 180) — Intrastate Shipment —Initial Carrier — Limitation op Liability.
    An initial carrier of an intrastate shipment may limit its liability for damages occurring on its own line and in tendering the shipment' to the connecting carrier for transportation to the point of destination.
    [•Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.]
    3. Evidence' (§ 178) — Secondary Evidence-Loss of Primary Evidence.
    Where a carrier did not contend that it did not issue contracts for return transportation of a shipper who lost the contracts, the shipper could testify as to their contents.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 5S0-594; Dec. Dig. § 178.]
    Appeal from San Patricio County Court; P. A. Hunter, Judge.
    Action by R. J. Grady against the San Antonio & Aransas Pass Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Kleberg & Stayton and David M. Picton, Jr., all of Corpus Christi, for appellant.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J. Appellee,

R. J. Grady, sued appellant, San Antonio & Aransas Pass Railway Company, for damages to two cars of watermelons shipped from Sinton, Tex., one car to Corsicana, Tex., and the other to En-nis, but diverted in transit to Hillsboro, Tex. It is alleged that on account of the negligent handling and delay of the railway company the melons in the car that went to Corsicana were ruined, bursted, and bruised in such a way that they were worthless, but would have been worth $140 on the market if they had been properly and promptly delivered; and from the car that went to Hillsboro 171 had been stolen or were missing, valued at $39.20. The plaintiff alleged that both were through shipments, and that he was compelled to pay the freight charges before he obtained the cars, but the freight paid on the Corsicana car was returned to him. Plaintiff also alleges that the railway company contracted to give him free transportation with the shipments, but failed to do so, and he was compelled to pay $20 for railway fare. The total amount sued for was $199.70, and that sum he recovered.

Appellant pleaded, among other defenses, a contract limiting its liability to its own line, which terminated at Houston, Tex., and to delivery there to its connecting carrier, which in this instance was the Houston & Texas Central Railway Company. Both cars were loaded at Sinton, consigned to the plaintiff, and the destination of San Antonio & Arans-as Pass car No. 7143 was Corsicana, routed by way of Houston and thence of the Houston & Texas Central Railway to point of destination, while the other car was billed to Ennis, but changed to Hillsboro. Both contracts or bills of lading show that the ears were shipped from Sinton to Houston, and a clause is contained in each contract, as follows:

“Section 2. If shipment is destined to a point off this company’s road, it is agreed that this is no contract for through shipment, and this company’s liability as a common carrier shall terminate on tender of delivery to a connecting carrier.”

Other issues will be stated in the course of- the opinion.

The first assignment complains of the action of the court in giving paragraph 9 of the charge to the jury, which is as follows:

“You are further instructed that plaintiff’s contract with the defendant shows a through shipment of said melons, and the defendant cannot limit its liability for any damages occurring to said melons, on account of the injury or damage to said melons, occurring on any connecting lines over which said melons were transported. If said melons were los<t or damaged anywhere en route to their destination, the defendant in this case would be liable for the full amount of the damages which plaintiff had sustained, regardless of whether the loss or injury occurred on its own line, or on the line of the connecting carrier transporting said melons.”

The objections are: (a) Because it states an incorrect principle of law; (b) because the first part thereof is on the weight of the evidence; (c) because the first part thereof is on the weight of the evidence as to any contract of carriage entered into between plaintiff and defendant which had not been introduced in evidence during the trial of the suit; and (d) because the same is an erroneous construction as a matter of law of the contracts of carriage introduced in evidence by defendant covering the shipments sued on by plaintiff.

The question of whether or not the contracts of carriage entered into between the parties were contracts for through shipments was a question for the jury, as the issues were made by the pleadings. The plaintiff alleged that he made contracts for through shipments direct from Sinton to points of destination, and to this he testified. But the railway introduced in evidence the two contracts or bills of lading, one signed by ap-pellee and the other by his agent or representative, J. T. Patterson. Both of these bills of lading, or contracts, showed the shipments were made from Sinton to Houston, and both contained the above clause limiting the liability of appellant to damages accruing on its own line and to a delivery to the connecting carrier to point of destination.

The evidence, then, was conflicting as to what the contract of carriage was, and it cannot be said that this part of the charge was not material, because appellant had offered evidence tending to show that there was no damage or delay that occurred on its line or up until the cars were delivered to the connecting carrier. So when the court charges that the contracts were for through shipment, such charge is certainly upon a material part of the controversy. A charge which assumes a controverted fact is erroneous. T. & P. Ry. Co. v. Murphy, 46 Tex. 366, 26 Am. Rep. 272; Linney v. Wood, 66 Tex. 22,17 S. W. 244; H. & T. C. Ry. Co. v. Nixon, 52 Tex. 19; Overall v. Armstrong, 25 S. W. 440; Boaz Co. v. Schneider, 69 Tex. 128, 6 S. W. 402; Lake, Tomb & Co. v. Copeland, 31 Tex. Civ. App. 359, 72 S. W. 99.

That an initial common carrier of an intrastate shipment of goods may limit its liability for damages to those occurring on its own line of railway and in tendering the shipment to a connecting carrier for transportation to point of destination seems to be settled. G., PI. & S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S. W. 328; S. A. & A. P. Ry. v. Chittim, 135 S. W. 747; Elder Dempster Co. v. Ry. Co., 105 Tex. 628, 154 S. W. 975; David Hunter v. So. Pac. Ry. Co., 76 Tex. 195, 13 S. W. 190. A similar case was before this court in S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App. 502, 66 S. W. 474, and Mr. Chief Justice James held that in the absence of a fraud, compulsion, want of time to read the contracts, etc., the shipper could not repudiate the contract of shipment so signed. None of these matters are alleged in this case. On the other hand, “they appear to have been deliberately entered into, and under the foregoing circumstances must be taken as merging all previous understandings of the parties. By their terms defendant was not liable for injuries occurring beyond its line.” So says Chief Justice James in the Barnett Case, supra, and the court makes the further observation in that case:

“The fact that the waybill issued by defendant for the guidance of its employes denominated this as a ‘through live stock waybill from Karnes City to San Angelo via Cameron & G. C.,’ could have no effect upon the terms of the contracts with defendant. Neither could the shipping report signed by plaintiff and the Gulf, Colorado & Santa Fé Railway agent at Cameron.”

In G., H. & S. A. Ry. Co. v. Jones, supra, the court says:

“Upon its face the contract of shipment expresses the agreement to be that the first company is to transport the cattle to the end of its line at Placedo and there deliver the same to the Galveston,-Harrisburg & San Antonio Railway Company, limiting the liability of each company- to damages arising upon its own line. To bring a contract of this character within the terms of article 331a, the contract entered into by the first carrier must be for carriage from the point of shipment to the destination, and! the shipment must be received and carried by the connecting carriers under that contract. There being in this case no contract for through shipment, the fact that the second company received and transported the cattle is not sufficient to create the joint liability declared by article 331a, and the Court of Civil Appeals erred in so holding. In order to bind the second- or subsequent companies jointly with the first, or with any of the other companies, there must be something more than receiving and transporting the goods, or property, because the law requires the carrier to so receive and transport such freight when tendered to it. Ft. Worth & D. C. R. R. Co. v. Williams, 77 Tex. 125[13 S. W. 637].”

The court further said, in that case:

“The said railroad company also assigns as error the refusal of the court to give this charge to the jury: ‘You are instructed that the defendant, -St. Louis, Brownsville & Mexico Railway Company, is a common carriel1, and as such may limit its liability to damages occurring on its own line, and cannot be required to furnish cars to go beyond its own line, in the absence of a contract so requiring same. If you find that the contract of shipment in question limits the defendant’s liability to damages occurring upon its own line, then in arriving at the amount of damages, if any, sustained by plaintiff, you are to look only to such damages as may be sh.own to have occurred upon defendant’s own line of road, and damages, if any, sustained in transferring said cattle to connecting carriers; and if you further find that no damages, such as alleged by plaintiff, occurred upon this defendant’s line of road, or in transferring said cattle to connecting carriers, you will find your verdict in favor of this defendant.’ The charge refused presented a correct statement of the law applicable to the facts of this case, and we are of the opinion that it should have been given as a guide to the jury in determining what damages, if any, would be properly chargeable to that railroad company.”

A similar charge was requested in this case and refused.

In Hunter v. So. Pac. Ry. Co., supra, the court has this to say as to liability for freight shipment:

“And the fact alone that it received goods marked for a place beyond its own terminus does not import an agreement to transport to -the destination named as a common carrier. Laws on Carr. § 240. Those cases which hold that such fact alone is to be regarded as showing that the railroad had contracted for the delivery of the freight at the point of destination, and as showing that it had made arrangements with connecting lines, concede that this is not so where it expressly limits its liability. Ala. S. S. Ry. Co. v. Mt. V. Co., 84 Ala. 173 [4 South. 356]; Falvey v. Railway, 76 Ga. 597 [2 Am. St. Rep. 58]. The reason a railroad is not liable beyond its own line as a common carrier, in the absence of an express contract, is because it is not a common carrier beyond its own line. The "law attaches to it no liability as a common carrier beyond the terminus of its own line, and does not compel it to act as common carrier over other lines not within its control. Railway v. Baird, 75 Tex. 256 [12 S. W. 530], Hence, when this liability does attach, it must be by virtue of some contract assuming it. In the case under consideration, the stipulation excepted to expressly releases it from such liability. It was lawful for the defendant in the contract of shipment to so de--cide. Railway v. Baird, supra.”

The first five assignments are sustained, since they all raise substantially the matters hereinabove discussed.

Tlie matters complained of in the sixth assignment are without merit. Appellee testified that he received written contracts for his transportation, the first of which he presented when ready to return, and it was refused. The second time, he presented a duplicate, the original being lost, and this was refused. It is not contended that appellant did not issue such contracts for return transportation, and appellee, having lost these papers, and that fact appearing, could testify as to the contents of the papers. This assignment is overruled.

The judgment is reversed and the cause remanded.


author: RAINEY, C. J.

text:
    ALLISON v. RICHARDSON et al.

    (No. 7214.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 28, 1914.
    Rehearing Denied Jan. 2, 1915.)
    1. Trespass to Try Title (§ 6)- — Sueeicien-cy oe Evidence oe Title.
    In trespass to try title against a person in actual possession, who claimed under deeds of conveyance and was not a naked trespasser, where plaintiff had never occupied the land, he could recover, if at all, upon the strength of his title only, and not upon the weakness of defendant’s title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9,15, 16; Dec. Dig. § 6.]
    2. Abatement and Revival (§ 89) — Dissolution oe Corporation — “Defendant”— ‘ ‘ Pl aintiee’ ’ — ‘1 Person . ’ ’
    Under Rev. St. 1911, art. 3723, providing that where a sole defendant dies after judgment for money against him execution shall not issue thereon, but that the judgment may be paid in due course of administration; article 3725, defining “plaintiff” as used in that title as the party in whose favor a judgment is rendered, and “defendant” as the party against whom judgment was rendered; and article 5504, subd.
    2, providing that “person” includes a corporation — a judgment against a corporation was not enforceable by execution after it had been dissolved by the sale of its roadbed, franchise, tracks, property, and charter rights, under a deed of trust, and a sale under execution of land not included in the sale under the deed of trust was void.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 194 — 204; Dee. Dig. § 39.

    For other definitions, see Words and Phrases, First and Second Series, Defendant; Plaintiff; Person.]
    3. Railroads (§ 32) — Dissolution—Winding up Aeeairs — Limitations.
    Under Rev. St. 1911, art. 6630, providing that whenever a ■ sale of the roadbed, track, franchise, and charter powers, and privileges of a railroad corporation is made, the directors of the corporation shall be trustees of the creditors, and stockholders, and have full power to settle the affairs of the. corporation, and article 6539, requiring that land acquired by railroads, not for depots, machine shops, turnouts, and switches, shall be alienated within 12 years, and providing that all lands not so alienated shall become forfeited to the state, where the directors of a corporation, whose franchise, etc., were sold under a deed of trust, never took possession of property not included in the sale, and did nothing toward settling its affairs, for 27 years they had no interest in the land, especially as it must be presumed that they abandoned the trust and could not assume it after such a lapse of time.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 63-69; Dec. Dig. § 32.]
    Appeal from District Court, Henderson-County; John S. Prince, Judge.
    Trespass to try title by B. M. Richardson against G. W. Allison, in which James Gar-rity and others intervened. From a judgment for plaintiff and the interveners, defendant appeals.
    Reversed and rendered.
    J. J. Faulk, of Athens, for appellant. W. R. Bishop, of Athens, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes-

       Writ of error pending in Supreme Court.

   RAINEY, C. J.

This is an action of trespass to try title to 8% acres of land brought by appellee Richardson against appellant. Appellant answered by general demurrer and by plea of not guilty. On the 5th day of February, 1914, James Garrity, W. H. Randolph, and C. T. Bonner intervened, alleging, that they were the only surviving directors of the St. Louis Railway Company of Texas, which became defunct on the 10th day of February, 1886, by reason of the roadbed, franchises, tracks, property, and charter rights of said railway company having been sold out by virtue of a deed of trust; that at the time of its demise no one was appointed by any authority to take charge of the said sold-out company, and that they became the trustees of said company’s stockholders and creditors; that said Bonner recovered a judgment against said railway company on the 7th day of November, 1884, and he sold an interest to plaintiff; that said judgment was valid and subsisting; and that said land ’ had • been sold by virtue of an execution issued thereon, and asked for a judgment against defendant for possession, etc. Defendant answered said plea by plea of not guilty and three years’ limitation. A trial resulted in a judgment in favor of plaintiff and interveners, and defendant appeals.

On August 26, 1876, the land in controversy was patented by the state of Texas to R. C. Underwood. In 1880 Underwood and wife conveyed it to the Texas & St. Louis-Railway Company in consideration of the location and maintenance of a .depot and station on said road contiguous to it. Bonner sued and recovered a judgment against said road for $745.70 on November 6, 1884, and executions were issued thereon from time to time to prevent the statute of limitation of ten years from running. In 1886 the Texas & St. Louis Railway Company’s roadbed, tracks, franchises, charter, etc., were sold out under a deed of trust, and said railway company became extinct. This land was not included, in the sale and remained unoccupied until a short time prior-to January 30, 1913, when it was possessed by appellant under deeds from parties purporting to be the heirs of the original grantee. On the SOth day of January, 1913, an execution was issued by virtue of the Bonner judgment. It was levied on the land in controversy, which was sold by the sheriff! and conveyed by him to appellee Richardson.

Appellant being in actual possession of the land and claiming same under deeds of conveyance, he was not a naked trespasser; therefore appellees could not recover on that ground alone. They had never occupied the land, and, being the actors in this action, must recover upon the strength of their title, if at all, and not upon the weakness of appellant’s title. Appellee Richardson’s title depends upon the validity of the sale of the land by virtue of an execution issued on the Bonner judgment in his favor rendered against the Texas & St. Louis Railway Company.

The question arises: Was said execution lawfully issued? We think not. Article 3723, R. S., provides:

“When a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration.”

Article 3725, R. S., provides:

“By the term ‘plaintiff’ as used in this title, is meant the party in whose favor the judgment is rendered, and by the term ‘defendant’ is meant the party against whom judgment was rendered.”

Article 5504, R. S., in defining the meaning of words, says in subdivision 2 that “ ‘Person’ includes a corporation.” So we construe the word “defendant,” as used in article 3723, to include a corporation, and applies to a dissolved corporation with the same force as to a demised person.

The Bonner judgment having been rendered in 1884, and the Texas & St. Louis Railway Company having been dissolved in 1880 by reason of the sale of its franchises, etc., it was in fact dead, and it was unlawful to thereafter issue executions on said judgment, and the sale thereunder was invalid. In this instance 27 years elapsed from the death of the road until the sale of the land was made under the execution. The statute sa.ys an execution on a judgment for money shall not issue after the death of the defendant. This positive injunction we take it is mandatory, and no authority exists for the issuance of the execution.

There is some conflict in the decisions of our Supreme Court as to whether a sale of land under execution issued as in this case is void or voidable. We think by the plain import of the statute such a sale is void and that the weight of authority so holds. In the case of Fleming v. Ball, 25 Tex. Civ. App. 209, 60 S. W. 985, rendered by the Fourth Court of Civil Appeals, and a writ of error denied by the Supreme Court, it was held that such a sale was void and could be collaterally attacked. The sale in that case was made eight years after the death of the sole defendant, and on whose estate there has been no administration. In this case there had been no administration, and the land had been unoccupied for about 25 years. We think the ruling in the Fleming Case is the correct one, and we will follow it.

the Texas & St. Louis Railway Company became extinct, its directors be-betrustees of its unsold property, and were entitled to administer it for the benefit of creditors and stockholders. Article 6630, R. S.; Aldridge v. Pardee, 24 Tex. Civ. App. 254, 60 S. W. 790.

When the railway corporation became extinct, its directors (interveners) did not assume the duty imposed upon them by law. They never took possession of the property,. nor did they do anything towards settling up the affairs of the concern; but from their nonaction it must be presumed that so long a time having elapsed they abandoned the trust and cannot now assume it, therefore whatever rights they may have had in the matter have been lost.

The appellant invokes article 1206, R. S., which limits the time for the settlement of the affairs of a dissolved private corporation by its directors to three years. We find no time fixed by the statute under the title “railroad,” in which the administration of the affairs of a defunct railroad is to be terminated. We find, however, in article 6539, R. S. 1911, that land acquired by railroads not for depots, machine shops, turnouts, and switches, shall be alienated by the expiration of 12 years, and all land not so alienated shall become forfeited to the state, and it would seem from this, whether the terms of article 1206 apply to this case, that such a length of time has elapsed that such interest as may have been held by the inter-veners had ceased to exist.

At the time the said railroad was sold out and the corporation ceased to exist, the Bonner judgment was a valid and existing claim and could have been collected through the trustees. He never presented said claim, nor took any steps to have it paid. It was not enforceable by the writ of execution, but under the law it was only collectible through the administration of the affairs of said defunct railroad company.

The plaintiff and interveners failing to show any title in themselves as against appellant, the judgment of the court below is reversed, and judgment here rendered for appellant.


author: RASBURY, J.

text:
    HORTON v. TEXAS MIDLAND R. R.
    (No. 7233.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 12, 1914.
    Rehearing Denied Jan. 2, 1915.)
    1. Appeal and Error (§ 549) — Biel op Exceptions — Instructions—Objections.
    The giving or refusal of instructions cannot be reviewed where there is no bill of exceptions showing that the trial court’s action was challenged before finally instructing the jury and an opportunity given the court to cure the errors pointed out, as provided by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. § 549.]
    2. Railroads (§ 95) — Defective Crossing-Personal Injuries — Question for Jury.
    Though, under Rev. St. 1911, art. 6485, it is the absolute legal duty of a railroad company to restore a crossing to its original state and keep it in repair, it is a question for the jury whether a crossing on which plaintiff claimed to be injured was properly restored or kept in repair.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 274-283; Dec. Dig. § 95.]
    3. Appeal and Error (§ 1003) — Review— Weight of Evidence.
    Unless the verdict is manifestly against the evidence, the appellate court may not disturb it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Maggie Horton against the .Texas Midland Railroad. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    ' J. G. Matthews, of Greenville, for appellant. Henry' C. Coke and S. W. Marshall, both of Dallas, and Dashiell & Coon, of Terrell, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig.' Key-No. Series & Rep’r Indexes

   RASBURY, J.

Appellant sued appellee in the court below for damages for personal injuries. Appellant was driving upon Division street in the city of Greenville in a buggy drawn by a single horse. When she reached a point where appellee’s line of railway crossed said street, which was in a deep cut with high embankments, and when, upon the crossing laid by appellee for the use of the public, her horse shied, causing a backward movement of the buggy, and placing same in a position where it was in imminent danger of being pushed or driven into a ditch or water hole by the side of the street and the railway, caused by the sweep of water in time of rains, as it came down the public street and met a similar sweep of water down the side of appellee’s road. In order to avoid such result, appellant hurriedly pulled her horse by the rein in a direction which would propel the buggy away from the ditch and avoid same. But due to the jerk of the buggy and its contact with the railroad tie or rail, she was thrown from the buggy and seriously injured. The grounds of negligence alleged by appellant were the failure of the appellee to keep and maintain a statutory crossing, alleging specifically that said crossing was in a defective condition and insufficient in width for the purpose for which it ■was constructed. Appellee’s answer consisted of a general denial, a special plea asserting that the crossing was as wide as the dirt road and as wide as could be maintained on account of the ditches on either side thereof, which were necessary to carry off the water. A summary of the facts established •by the evidence of the respective parties is unnecessary in order to determine the issues involved.

The first assignment of error complains of the action of the trial judge in giving a special charge requested by appellee; and the second assignment complains of the refusal of the judge to give a special charge requested by appellant. Without reference to whether there was or was not error in the trial judge’s action in giving the charge in the one instance and in refusing to do so in the other, we cannot consider the assignments, since it does not appear from the record before us that appellant complied in the court below with the recent statutory provisions governing the right of litigants to have this' court review the action of the trial court in the giving or refusing of charges specially requested. Gen. Laws Reg. Sess. 33d Leg. 1913, p. 113. We have, in obedience to the several legislative enactments cited, and in consonance with the construction placed thereon by the other 'Courts of Civil Appeals, heretofore held that, in order to correct alleged errors in the court’s general charge or in giving or refusing special charges reviewed by the appellate courts, it should affirmatively appear from the record by bill of exceptions, when the proceeding complained of is some part of the general charge, or the giving of a special charge, that the charge so complained of was prepared by the trial judge and submitted to the respective parties or their attorneys for inspection, and that the objections urged on appeal were in like manner urged in the court below and presented to the trial judge before reading such f.general or allowed special charges to the jury, and that, in the absence of such affirmative showing by the record, all such objections are by the statute declared to be waived; and, in reference to the action of the trial court in refusing charges specially requested by any litigant, we have said that, in order to review such action, it must affirmatively appear from the record by bill of exception that the refused charge was presented to the trial court before the reading of the general charge and submitted to opposing counsel for examination and objection within a reasonable time after the general charge is given such counsel for examination, and that, in the absence of such affirmative showing, the action of the court in refusing the special charge shall be regarded as approved. Insurance Co. v. Rhoderick, 164 S. W. 1007; Railway Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Culver, ICS S. W. 514; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Tomlinson, 169 S. W. 217; Texas Midland Railroad v. Becker & Cole, infra, decided by this court November 28, 1914, and not yet officially reported; Texas Midland Railroad v. C. F. Fogleman, 172 S. W. 558, decided by this court December 5, 1914, and not yet officially published; W. R. Case & Sons Cutlery Co. v. A. I. Folsom, 170 S. W. 1066, decided by this court November 21, 1914, and not yet officially reported.

In the instant ease there is an entire absence of any bill of exception showing a compliance with the provisions just enumerated. The special charge given at the request of appellee contains only the word “given,” and the one requested by appellant the words“refused, plaintiff excepts,” both signed by the trial judge and filed by the clerk. It is obvious that the essential and vital provisions of the new procedure are omitted, since there is no bill of exceptions affirmatively showing that the court’s action in both cases was challenged before finally instructing the jury and an opportunity given the court to cure the alleged errors so pointed out.

By her third assignment of error ap•pellant asserts that, under the undisputed evidence, she was entitled to a verdict, and that the court should have for that reason set aside the verdict of the jury and granted her a new trial. The evidence without contradiction does show that the place where appellant received her injuries was at a point where appellee’s line of railway crossed a public road, and as a consequence it was the absolute legal duty of appellee to restore the road to its original state or to maintain same in such condition as not to unnecessarily impair its usefulness and to keep such crossing in repair. Article 6485, R. S. 1911. Conceding the legal duty imposed upon appellee by the statute and that the crossing was a public one, still it was a question of fact for the determination of the jury whether appellee had, when it crossed the public road, restored the same to its former state or to such state as not to unnecessarily impair its usefulness and had kept the same in repair. On that issue, which is vital, the evidence is not without ■contradiction. We have read the testimony bearing upon the condition of the crossing, •and we conclude it is sufficient to sustain the finding of the jury in that respect. We might, in deference to counsel’s contention, assemble and compare the evidence of both parties, but since it is a matter finally for this court to determine, after reading the ■evidence, we conclude we are expected to do no more than carefully examine same and state our conclusions, which are that it cannot be said, from such examination, that the verdict of the jury is manifestly against the evidence, or inadequate or contrary thereto, or does not support the verdict, and, until the evidence presents such a condition, we are without authority to disturb the verdict.

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


author: TALBOT, J.

text:
    TEXAS MIDLAND R. R. et al. v. BECKER & COLE.
    (No. 7216.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 28, 1914.
    Rehearing Denied Jan. 2. 1915.)
    1. Appeal and Error (§ 499) — Record — Matters Presented fob Review.
    That objections to the charge were presented before it wás read to the jury, and that exceptions were taken to the refusal of special charges as required by Act March 29, 1918 (Acts 33d Leg. c. 59) must be shown by a bill of exceptions taken and incorporated into the record, and was not sufficiently shown by a purported transcript of the objections and exceptions, signed by counsel for the appellants and filed with the clerk without presentation to, and approval by, the trial judge, nor by affidavits of the trial judge made long after the perfecting of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Carriers (§ 213) — Transportation oe Live Stock — Performance of Contract.
    A carrier’s agreement to deliver cattle at a market on a particular day was not complied with by delivering them before' the market closed, but too late to unload them and get them on the market before its close.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.]
    3. Carriers (§ 228) — Transportation of Live Stock — Actions fob Damages — Evidence.
    In an action for damages to a shipment of live stock from delay in transportation and rough handling, the testimony of witnesses for plaintiffs that the delay and rough handling complained of was all along the route was properly admitted.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dee. Dig. § 22S.]
    4. Appeal and Error (§ 750) — Assignments of Error Bad in Part.
    In an action for damages from delay in transportation and rough handling of a shipment of cattle, assignments of error that there was no evidence of delay or rough handling, and that the evidence showed by its groat preponderance that there was no delay or rough handling on the line of either defendant, would be overruled, where the evidence supported a jury finding of unnecessary delay and rough handling on the line of one of the defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074r-3083; Dec. Dig. § 750.]
    5. Carriers (§ 219) — Damages—Liability of Initial Carrier.
    Under Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. 1913, § 8592), providing that any common carrier receiving property for interstate transportation shall issue a receipt or bill of lading and shall be liable to the lawful holder thereof for any loss, damage, or injury to the property caused by it, or by any common carrier to which such property may be delivered or over whose lines it may pass, an initial carrier was liable for the damages 'to an interstate shipment of cattle, due to delay in transportation and rough handling while on the line of a connecting carrier.
    [Ed. Note. — For other cases, see Carriers', Cent. Dig. §§ 950, 951; Dec. Dig. § 219.]
    6. Damages (§ 139) — Excessiveness—Inju-ries to Shipment of Cattle.
    That, in an action for damages to a shipment of cattle from delay in transportation and rough handling, the verdict was for a greater amount than the damages as estimated by one of plaintiff’s witnesses who it was claimed was their agent, was not conclusive that the verdict was excessive, whére the testimony of other witnesses supported the verdict.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 400-403; Dec. Dig. § 139.]
    7. Appeal and Error (§ 1004) — Review— Questions oe Fact.
    A verdict supported by the testimony of some of the witnesses should not be disturbed as excessive, though an appellate court might, upon the whole testimony or the testimony of a particular witness, have found differently if the matter had been submitted to it as an original proposition.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 394L-3947; Dee. Dig. § 1004.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by Becker & Cole against the Texas Midland Railroad, the St. Louis & San Francisco Railroad Company, and another. From a judgment for plaintiff against the defendants named, they appeal.
    Affirmed.
    Henry C. Coke, of Dallas, Dashiell & Coon, of Terrell, and Andrews, Streetman, Burns & Logue, of Houston, for appellants. Wynne & Wynne, of Kaufman, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and. section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

The appellants state the nature and result of the suit as follows: The appellees, Becker & Cole, sued the Texas Midland Railroad, Paris & Great Northern Railroad, and the St. Louis.& San Francisco Railroad Companies, in the county court of Kaufman county, for damages in the sum of $962.82 to a shipment of cattle from Kaufman, Tex., to the National Live Stock Lards at East St. Louis, Ill. They alleged that on the 4th day of June, 1910, they made a contract with the Texas Midland Railroad to ship two car loads of beef cattle, which were intended to be sold on the 6th day of June, 1910, but they arrived too late to be sold on that day’s market, and were not sold until the following day. They sought to recover on two grounds of negligence: One was delay in reaching the market; the other was rough handling of cattle while en route. As a result, they alleged that they were damaged by an excessive shrinkage in weight, by the market declining, and by loss in appearance of cattle. All the defendants answered. They excepted to the petition because the allegations were too vague and indefinite and failed to inform defendants what train carried the cattle, or on what line or place the delay occurred. Then, after a general denial, they pleaded a written contract, in which was contained certain stipulations and conditions, and said written contract was executed in consideration of a reduced rate. For the purpose of this appeal, only one clause need be considered, the clause requiring notice of damages to be given to the delivering carrier at destination before the live stock were mingled with other live stock in order that an investigation might be made. They also pleaded that the cattle were transported in a reasonable time, and that the stop at New-berg was, made in compliance with the federal act. The court overruled the special exceptions, and, refusing to instruct the jury to return a verdict for the defendants on the ground that the claim was not presented in the time prescribed in the contract, the case was submitted to the jury, and a verdict was returned in favor of the plaintiff against the Tdxas Midland Railroad and the St. Louis and San Francisco Railroad Company for the sum of $450, and in favor of the Paris and Great Northern Railroad Company. The Texas Midland Railroad and the St. Louis and San Francisco Railway Company filed motion for a new trial, which was overruled, and they appealed.

There are several assignments of error complaining of certain paragraphs of the court’s general charge and the refusal of special charges requested by appellant. The action of the court in giving and refusing the charges to which these assignments relate cannot be reviewed, for the reason that the record fails to properly show that objections to the paragraphs of the general charge in question were presented before it was read to the jury, and fails to so show that exceptions were taken to the refusal of the special charges, as required Ky the act of the Legislature, approved March 29, 1913 (Session Acts 1913, p. 113). There is in the transcript what ■ purports to be appellants’ objections to said paragraphs of the general charge and exceptions to the special charges, but it does not appear that this paper was presented to the trial judge and approved by him and ordered filed as a part of the record in the case. It is simply signed by counsel for appellants, and marked filed by the clerk. The paper cannot therefore be regarded as a bill of exceptions; nor can it be considered in any sense as a part of the record exhibiting the presentation of objections to the general charge or exceptions to the court’s action in refusing the special charges. It is settled by numerous decisions of Courts of Civil Appeals that, under the provisions of the act of the Thirty-Third Legislature, to which we have referred, objections to charges given, and the refusal of special charges requested, must be disregarded on appeal, unless the appellant shows, by bill of exceptions taken and incorporated into the record that such objections were made and presented before the charge of the court was delivered to the jury and that the particular special charge was requested and its refusal excepted to at the time. The following are some of the decisions on the subject: Railway Co. v. Wadsack, 166 S. W. 42; Ins. Co. v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Culver, 168 S. W. 514; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Tomlinson, 169 S. W. 217. There is also found in the briefs of appellee and appellant affidavits of the trial judge relating to the question of whether or not the appellants objected to the court’s general charge and excepted to the refusal of the court to give their special charges, made long after this appeal was perfected, but those affidavits cannot take the place of the bill of exceptions required by the statute, or be considered by this court for any purpose.

In regard to the proposition asserted by appellants under their third assignment of error, to the effect that, when the carrier delivers cattle at the market on the day it agreed to deliver them before the market closes, it complies with its contract, and is not liable for any loss to the shipper by reason of his carrying the cattle over to the following day, even though such delivery was too late to get the cattle unloaded and on the market before it was closed, it is sufficient to say that such proposition has been expressly decided against them. Railway Co. v. White, 160 S. W. 1128; Railway Co. v. Wells, Nash & Nash, 153 S. W. 659.

The seventh and eighth assignments of error complain of the court’s action in overruling appellants’ special exceptions “A” and “B” to appellees’ petition. Exception “A” is:

“The allegations in the plaintiffs’ petition that the agents, servants, and employes of defendant in charge of the respective trains handling plaintiffs’ cattle carelessly and negligently rammed and jammed the cars together are too vague and indefinite, in that they do not state specifically the time and place, or places, where said train was carelessly and negligently handled, and the cars negligently and carelessly handled, rammed, and jammed together, throwing plaintiffs’ cattle down.”
Exception “B” reads:
“The allegations that the cattle were delayed by the negligence and carelessness of the defendants for over 24 hours is toó vague and indefinite, in that it fails to state specifically the places where the cattle were delayed and for the length of time delayed at each place.”

These allegations were sufficient to admit proof of them, and no reversible error was committed in overruling the exceptions. Railway Co. v. Jones, 41 Tex. Civ. App. 327, 91 S. W. 611; Railway Co. v. Martin, 49 Tex. Civ. App. 197, 108 S. W. 981; Railway Co. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 767; Railway Co. v. Cartwright, 151 S. W. 630. The record here, unlike in the Cartwright Case, supra, shows that an order was made and entered overruling appellants’ said exceptions, and hence such action, having been-assigned as error, is reviewable in this court.

In this connection we will further say that there was no error in permitting the witnesses Carter, Cole, and Morrow to testify that the delay and rough handling of the cattle complained of was all along the route. The objections to the testimony went to its weight and sufficiency, rather than to its admissibility.

The tenth and eleventh assignments assert, in substance, that there is no evidence of delay or rough handling on the line of either of the appellants, and that the verdict of the jury is against the great preponderance of the evidence, and manifestly wrong. These assignments are submitted together as propositions, and it is sufficient to say that the evidence, especially with regard to the appellant St. Louis & San Francisco Railroad Company, was sufficient, although conflicting, to support the verdict of the jury finding that company guilty of unnecessary delay and rough handling of the cattle on the line of its railway, and hence the assignments should be overruled. There is no distinct proposition urged here that there was no evidence showing unnecessary delay and rough handling of the cattle of the Midland Railroad’s line of railway. The proposition as presented is that there was no evidence, or that the evidence overwhelmingly shows that there was no delay or rough handling on the line of either of these appellants. But however this may be, the Midland Railroad was the initial carrier in the shipment of appellees’ cattle, and the shipment being an interstate one that company, under Act of June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. Í907, p. 909), was liable to appellees for any loss or injury to their property caused by it or any connecting carrier over whose line such property passed in transit to its destination.

It is also contended that the verdict is excessive. This contention we are not prepared to sustain. Our examination of the evidence results in the conclusion that the amount of damages awarded was authorized by the evidence; that is, that there was substantial legal testimony going to show that, by unnecessary and unreasonable delays and rough handling of the cattle, appellees had suffered damages in the amount awarded them by the jury. This is true without regard to any decline in the market on June 7, .1910, when the cattle were sold. We would not be warranted in sustaining appellants’ contention to the effect that appellees should be bound by the estimate made of their damages by the witness Keechler, who, it is claimed, was their agent, and from whose testimony the jury might have found that appellees’ damages were less than the amount awarded. The jurors trying the case were the judges of the credibility of the witnesses and the weight to be given to their testimony. Their verdict is supported by the testimony of other witnesses, and should not be disturbed, even though we might, upon the whole testimony or the testimony of any particular witness, have found differently, if the matter had been submitted to us as an original proposition.

The judgment is affirmed.


author: HENDRICKS, J.

text:
    MULDOON v. J. E. BRAY LAND CO.
    (No. 686.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1914.)
    1. Continuance (§ 37) — Absence of Pasty —Motion—Sufficiency.
    A motion for a continuance, verified by counsel for defendant, which alleges the materiality of defendant’s testimony, but which states only in general terms that defendant was absent from cause over which he had no control, is properly overruled.
    [Ed. Note. — Por other cases, see Continuance, Cent. Dig. §§ 117-121, 127; Dec. Dig. § 37.].
    2. New Trial (§ 124) — Motion—Grounds— Absence of Defendant at Trial.
    Denial of new trial on the ground of defendant’s absence, where the motion fails to aver why he did not notify his counsel or the court of his absence, knowing that his case would be called for trial, or to show why he could not have started earlier for the place of trial and be personally present at the trial, is within the discretion of the court.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 250-253; Dec. Dig. § 124.]
    Appeal from Foard County Court; T. W. Staton, Judge.
    Action by the J. E. Bray Land Company against Mathew Muldoon. From a judgment denying new trial after verdict for plaintiff, defendant appeals.
    Affirmed.
    , See, also, 147 S. W. 701.
    Robert Cole, of Crowell, and Jones & Miller, of Amarillo, for appellant. G. W. Walth-all, of Crowell, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

The appellee, J. E. Bray, recovered of appellant, Mathew Mul-doon, a verdict and judgment in the lower court for the sum of $242.50, as a claim for one-half of a commission collected by Mul-doon from one Fenton, arising from a land trade; Bray claiming that he was entitled to participate with Muldoon by virtue of a contract to divide commissions when Mul-doon furnished a purchaser — Bray furnishing the lands listed on his books for sale or exchange. The cause had been on the county court docket for several terms and stood for trial the 2d day of March, A. D. 1914 (the first Monday in the month), but was not called for trial until Tuesday, the day following, at which time, on account of the absence of the defendant Bluldoon, his counsel reguested a postponement until the next day, Wednesday, in order to ascertain by telegram the whereabouts of his client and obtain his presence at the trial of the case. This cause had been tried twice previously, resulting in a verdict in favor of the plaintiff at one trial, and in favor of the defendant at another; both of which were set aside by the trial court. At a term previous to the present trial, the defendant Muldoon, who resided in Kansas City, Mo., had obtained an agreed continuance of the case on account of the sickness of his wife, but was in attendance at the two trials mentioned, testifying personally in each.

When this cause was again called, Wednesday, for announcement, defendant’s counsel presented a sworn motion for continuance, alleging the materiality of defendant’s testimony, but stating only in general terms that defendant was absent from some cause over which the latter had no control, and which motion the court very properly overruled. The verdict of the jury was based upon testimony, and was not purely one of default, and judgment was rendered Wednesday, March 4th, the day the cause was last called. The defendant Middoon arrived Thursday, March 5th, and on the 13th filed an amended motion for new trial, alleging his residence in Kansas City, Mo., and that his wife was in such condition that she could not be left alone, and in order to attend the trial it was necessary for him to take her to her mother’s 200 miles distant from Kansas City, before defendant could then leave for Crowell; and for that purpose he intended to start with his wife to her mother’s on the previous Thursday, but on account of her condition the trip was delayed until the following Saturday. There is no allegation why he failed to notify his counsel or the court of his absence, knowing that this case would be called for trial Monday, March 2d. There is a statement that he took his wife 200 miles to her mother, but when he arrived here, and after leaving his wife, why he could not have started earlier for Crowell, for the purpose of personal attendance at the trial, was not shown. It was shown that some time Wednesday, after the trial had begun, defendant’s counsel at Crow-ell received a telegram from him, evidently in response to counsel’s telegram; but when sent or from what place is not alleged. There is a space of time from Saturday until this telegram was sent by him to his counsel, which, except for 200 miles of train travel, is not accounted for in the slightest. There is no allegation that he had to stay with his wife, assisting her mother in attendance upon the latter on account of her condition. Justice Gaines said in the cause of Mayer v. Duke, 72 Tex. 449, 10 S. W. 566:

mony, and that Ms failure to attend was the result of a mistake as to the day which was set down for the trial of the cause. The fact, however, remains that the diligence was not used which the law requires. A party to a suit, whose testimony is material to his cause, may prefer to give his testimony in person, and may therefore decline to have his deposition taken in his own behalf. But if he does so, he takes the risk of losing the benefit of his testimony, in the event he should fail from any cause to attend upon the trial. Having elected to take his chance of attendance upon the trial, his absence should not, in an ordinary case, be permitted to result to the prejudice of the opposite party. It should neither be a ground for a continuance; nor for the granting of a new trial. There is nothing in this case to take it out of the ordinary rule. The facts within the knowledge of Kahn could have been as well presented by deposition as by his oral testimony upon the stand. Besides, the affidavits supporting the motion for a new trial tend very strongly to show that the mistake which caused his absence came about by his negligence in failing to give attention to his counsel, when the latter informed him of the day set down for the trial of his case. At all events, it was the result either of his own negligence or that of his counsel, and the consequence would be the same in either case.”
“It may be conceded that the affidavit of Kahn (a defendant in that cause) attached to the motion for a new trial sufficiently showed the materiality and importance of his testi-

The language of the Supreme Court is quite appropriate in many respects to this cause. There is a failure of allegation here accounting for the absence of the defendant after he left Kansas City and traveled 200 miles to his destination, which suggests considerable neglect on the part of the defendant; at least, the allegations in the motion for new trial, sworn to by defendant, arc of such an unsatisfactory nature as that this court is unable to say there is any abuse of discretion on the part of the trial court, and the cause clearly comes within the principle announced by Justice Gaines, applied to rather similar facts disclosed in the case cited.

The judgment is affirmed.

HALL, J., not sitting.


text:
    ATCHISON, T. & S. E. RY. CO. v. HILL et al.
    (No. 670.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1914.
    Rehearing Denied Dec. 12, 1914.)
    1. Trial (§ 260) — Instructions — Submitting Affirmative Defense.
    A special charge affirmatively presenting in detail the elements of an affirmative defense established by evidence should not. be denied, though a general charge presents in a general manner the same defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    2. Trial (§ 260) — Instructions — Special Affirmative Charge.
    Where the evidence almost conclusively established a ease against defendant presenting an affirmative defense, refusal of a special charge affirmatively presenting in detail the elements of the defense was not error, where the general charge presented the defense in a general manner.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-059; Dec. Dig. § 260.]
    3. Carriers (§ 211) — Interstate Carriage of Live Stock —i Violation of Twenty-Eight Hour Law.
    A violation by a carrier of an interstate shipment of live stock of the Twenty-Eight Hour Law (Act June 29,1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. 1913, §§ 8651-8654]), relating to unloading stock for feeding, is negligence per se rendering the carrier liable to the shipper for resulting injuries to the stock.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.]
    4. Carriers (§ 211) — Interstate Carriage of Live Stock — Violation of Twenty-Eight Hour Law.
    A carrier of swine cannot justify a violation of the_ Twenty-Eight Hour Law by relying on regulations of the Bureau of Animal Industry providing that public stockyards shall be considered infectious, and no interstate movement of swine therefrom shall be made for feeding purposes, but that swine not diseased and not exposed by being in yards may be shipped, and that cars that have contained interstate shipments shall not be removed until the inspector has ascertained the condition of the stock, and either released the cars or given notice that they shall be disinfected, where the swine came from private pens and were loaded in disinfected cars, in the absence of anything to show that the carrier could not provide uninfected pens.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.]
    Appeal from Armstrong County Court; H. L. Mobley, Judge.
    Action by J. E. Hill and another against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs against defendant named, it appeals.
    Affirmed.
    Madden, Trulove & Kimbrough and H. C. Pipkin, all of Amarillo, for appellant. W. A. Wilson, of Claude, and Turner & Wharton, of Amarillo, for appellees.

      For other cases see same topic and section NUMBER in Lee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

The appellees sued the Atchison, Topeka & Santa Fé Railway Company, also the Eastern Railway Company pf New Mexico, the Pecos & Northern Texas Railway Company, and-the Ft. Worth & Denver City Railway Company, in the county court of Armstrong county, Tex., alleging damages on account of negligence of the defendant carriers. The cause was tried to a jury, resulting in a verdict against the Atchi-son, Topeka & Santa Fé Railway Company, the appellant herein, for the sum of $575, and in favor of the other defendant carriers. The record discloses that J. E. Hill purchased two car loads of hogs, 365 in number, of one W. F. Holloman, and that the latter, prior to the sale of his hogs to the former, on October 23, 1912, had made a written order with the railway agent at Artesia, N. M., for double-deck cars for the purpose of shipping the hogs. The railway company was unable to furnish the double-deck cars, and the next day, the 24th of October, 1912, the train dispatcher of the Santa Fé at Roswell, N. M., was telegraphed to furnish two single-deck cars for the purpose of the shipment. The hogs, during this time were in private pens adjoining one of the switch tracks of the defendant Santa Fé Railway Company at Ar-tesia, and the single-deck cars were not furnished by said train dispatcher until Saturday, October 26th, at 7:50 p. m. The shipment did not leave Artesia, N. M., until 1:55 p. m. on October 28th (destined for Claude, Tex., on the Ft. Worth & Denver City Railway), and upon arrival at Roswell on the line of the Santa Fé at 5:10 p. m. the same date, were held on the cars at that place' until 5:50 p. m. October 29th — over 24 hours’ delay at the latter station. The trial court charged the jury in paragraph 5 as follows:

“When .a railway accepts a shipment of live stock for transportation, it becomes its duty to exercise ordinary care to transport to its destination within a reasonable time, or to deliver it to its connecting carrier over whose lines such stock must be transported. What would be a reasonable time in a given case must be determined by the jury from all the facts and circumstances of the case, as shown by the testimony in view of the character of the shipment and its liability to injury in the time of transportation. Now, if you find and believe from a preponderance of the evidence that the defendants or either of them failed to use ordinary care to transport the said shipment over its lines within a reasonable time, and that plaintiff was damaged thereby, then you will find for the plaintiff such damages, if any, which he has incurred by reason of such failure against the defendants so failing; otherwise you will find for the defendants on this phase of the case.”

Also submitting the following as paragraph 6:

“Paragraph 6 of the court’s main charge instructed the jury that: You are instructed that it is the duty of the carrier over whose lines a shipment is transported to use ordinary care to prevent such shipment from injury. Now, if you find and believe from the evidence that the shipment in question was damaged by the drenching with water, as alleged by the plaintiff, and that said damages were the proximate result of -the failure of the said defendant to use ordinary care for the protection of the said shipment, then you will find for the plaintiff such damages, if any, as may be accrued to him by reason of such failure to use ordinary care to prevent such injury, and assess the damages against the defendant or defendants so failing; otherwise you will find for the defendants on this phase of the case.”

The appellant, Atchison, Topeka & Santa Fé Railway Company, assigned as error the refusal of the trial court to submit to the jury their special charge No. 2, which is -as follows:

“Gentlemen of the jury, you are instructed that, if you believe and find from the evidence in this case that the plaintiff or his agent made a reasonable request upon the defendant’s agents at Artesia for this defendant to furnish cars for the transportation of the hogs in question, and if you further believe and find from the evidence after such request that this defendant, to the best of its ability, furnished said ears within a reasonable time, and you further believe and find that this defendant exercised ordinary care on its part to transport said hogs over its line of road and to deliver the same to its connecting-carrier within a reasonable time, and you further find and believe from the evidence that this defendant exercised ordinary care on its part to feed and water and rest said hogs while in this defendant’s possession, and if you further find and believe from the evidence that this defendant was not guilty of negligence in putting water into the cars in question or in drenching said hogs, then you will find for this defendant, and so say by your verdict.”

The argument is that the testimony of appellant is sufficient to the extent to raise the issue that it furnished the cars within a reasonable time, and that it transported the said shipment with reasonable dispatch under the circumstances, and that it exercised ordinary care in feeding and watering the hogs and that, since appellee’s complaint was substantially that the shipment was damaged by reason of the negligence of appellant as to such matters, the latter had the right to have the facts grouped, as set forth in the special charge, and to have the jury pass upon the' same affirmatively. The rule contended for with reference to the omission of requested instructions, where the record is in such.condition as that the affirmative issue, in favor of the defendant in cases of ordinary care, and -in any litigation where applicable, is well settled in this státe. The Supreme Court, in the ease of Yellow Pine Oil Co. v. Noble, 101 Tex. 125,105 S. W. 318, applied the rule as to the affirmative presentation of the issue for the defendant to the extent that a special charge affirmatively presenting in detail the elements of defense should not be denied, though the general charge of the trial court, however, only in a general manner affirmatively presented the same defense. Also see Railway Co. v. Taylor, 162 S. W. 969, and cases cited. However, in this case, after a careful consideration of the record as to the negligence of the railway company, relative to the transportation of the particular shipment, without detailed analysis of the facts and the inferences derivable therefrom, we are convinced that, considering the main charge of the court, in view of the cogency, and almost conclusive effect, of the testimony exhibiting the negligence of the initial carrier, that the omission of the special) charge submitted by the appellant was not calculated in the slightest to affect the jury’s verdict.

The more important question in this case is raised by the third assignment of error, on account of the submission by the trial court to the jury of plaintiff’s special charge No. 1, which charge is as follows:

“Gentlemen of the jury, you are instructed at the request of the plaintiff that, if you find and believe from the evidence that the hogs in the shipment in question were held in-the cars for an unreasonable length of time without being unloaded for food, water, and rest, and that such act was due to the negligence, if any, of the defendants, or either of them, and that by reason thereof the said hogs sustained injury thereby, then you will find for the plaintiff such damages, if any, as you may find from the evidence he sustained by reason of such negligence, if any, in respect to any of the matters submitted to you in the court’s main charge, and you will assess the damages against the particular defendant responsible therefor, as directed in the said main charge.”

Eliminating the element in the case oí the failure upon the part of the appellant to procure the single-deck cars, the record shows that the swine were something like 75 hours in course of transportation of a distance of 281 miles, and were not unloaded for feed, water, or rest at any point during that period. The appellee Hill accompanied the hogs from Artesia, N. M., to Roswell, where the delay of 24 hours occurred, and, on account of the delay, left the shipment at that place by different transportation for Claude. The justification by appellant of its failure to comply with the federal law requiring stock to be unloaded for feed, water, ■and rest is presented in its brief in the following manner:

“Regulation 44 of the Bureau of Animal Industry, among other things, provides that public stockyards shall be considered infectious and no interstate movement of swine therefrom shall be made for feeding or stocking purposes. * * * Swine that are not diseased and have been merely exposed by being in the yards may be shipped interstate to a recognized slaughtering center for immediate slaughter. Where, however, a part of the yard is set apart for the reception of uninfected shipments of swine and is kept free of infection, swine may be shipped interstate from the uninfected portions thereof without restriction. * * * ”

Regulation 45, as quoted in the brief, applicable to this question, provides:

“That cars that have contained interstate shipments of swine shall not be removed until the inspector has ascertained the condition of the live animals and either released the cars or given notice that they shall be cleaned and disinfected. * * * ”

These particular hogs are not shown to have been exposed to any disease, nor to have been infected in any manner. The cars in which the shipment was made were cleansed and disinfected before the transportation began, and, as presented in tbis brief, without more, we are inclined to think that the mere proof of the regulations of the Bureau of Animal Industry, as therein exhibited, is not a sufficient defense of a violation of the federal law. This federal statute, as amended and approved June 29, 1906 (34 Stat. 607, c. 3594 [U. S. Comp. St. 1913, §§ 8651-8654]) provides':

“That no railroad * * * whose road forms any part of a line of road over which cattle, sheep, swine, or other animals shall be conveyed * * * (in interstate commerce) * * * shall confine the same in cars, * * * of any description for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by * * * unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight. * * * ”

There can be no question in. tbis record of tbe shipper assuming any duty, as applicable to the direct contention, for the reason that the railway company, during the course of transportation, refused to unload the hogs for feed, water, and rest, upon the ground that the regulations mentioned prevented it from so doing.

In a civil case a violation of the Twenty-Eight Hour Law “is negligence per se, rendering the railway company liable to tbe shipper for resulting injuries to animals.” 6 Cyc. p. 439; Reynolds v. Railway Co., 40 Wash. 163, 82 Pac. 165, 111 Am. St. Rep. 883; Railway Co. v. Heggie, 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453.

The primary purpose of the act, as exhibited by the title of the same, is “to prevent cruelty to animals in transit”; its declared intent being “to prohibit their continuous confinement beyond the period of twenty-eight hours, except upon the contingencies hereinbefore stated.” Same statute; Railway Co. v. U. S., 220 U. S. 94, 31 Sup. Ct. 369, 55 L. Ed. 384.

It is also particularly to be noted that the confinement is not to occur, “unless prevented by * * * unavoidable causes, which cannot be anticipated or avoided by tbe exercise of due diligence and foresight.” While not made clear by appellant, except that it presents a general justification by virtue of tbe regulations of tbe Bureau of Animal Industry, we presume tbe contention is that any stock pens in which the hogs would have to be unloaded, and again reloaded, en route, provided for that purpose by the carrier, would be public stockyards within tbe purview of the regulation, and that no interstate movement of swine there* from should be made for feeding or stocking purposes. Regulation 44. The same regulation provides, however:

“Where a part of the yard is set apart for the reception of uninfected shipments of swine, and is kept free of infection, the swine may be shipped interstate from the uninfected portions thereof without restrictions.”

As stated, tbe beginning of tbis particular shipment was not from public stockyards, but was from private pens, deducible from the testimony.

As to tbe unloading and reloading of tbe swine en route, we presume that tbe further contention of appellant is, by virtue of regulation 45, that these cars having contained interstate shipments, that said cars could not be removed, nor could tbe hogs be reloaded in the same, until some inspector had ascertained the condition of the live animals and either released the cars while en route or gave notice that they should be cleansed and disinfected. The particular cars had already been disinfected. There is no showing by the railway company in regard to uninfected pens, or, if they could not provide pens for the purpose of transportation, there is no showing why provision could not have been made.' The railway company had accepted the hogs for transportation — true, an interstate shipment —and, though a duty is not generally devolved upon a carrier outside the scope of transportation, we are not able to say that it may show a justification of a violation of this law by merely presenting regulations 44 and 45, and by merely saying, if tbe bogs bad been unloaded at Roswell or at any other point for tbe purpose of complying with tbe law, that they could not have reloaded them on account of this regulation without some testimony precluding anticipation of sucb result as a cause justifying tbe violation of tbe law. “Tbe cause, in order to justify tbe excessive confinement on tbe ears, must be one which cannot be anticipated or avoided under tbe terms of tbe statute, by tbe exercise of due diligence and foresight,” and, as to the particular question, this due diligence is not devolved upon tbe shipper, but is incumbent upon tbe carrier.

Starting with tbe premise that it was tbe duty of tbe carrier to comply with the act, as an incident to transportation, which, if not done, is negligence per se, and which cannot be excused “except upon the contingency” mentioned in the act, we think it is also its duty in this instance to show as an avoidable cause of exoneration that it could not have complied with the regulations of the Bureau of Animal Industry. Under this condition, the giving of plaintiffs special charge we do not consider as error.

There is no other assignment which we think is sufficient to require discussion, and, upon the whole, we think the cause should be affirmed; and it is so ordered.