author: HENDRICKS, J.

text:
    FT. WORTH & D. C. RY. CO. v. ALLEN et al.
    (No. 1053.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1916.
    On Motion for Rehearing, Nov. 29, 1916.)
    1. Couets <&wkey;169(4) — Jurisdiction—Amount —Interest.
    A cause of action does not exceed the jurisdiction of the court by the addition of interest as damages if at the time the suit is filed the amount in controversy falls within the court’s jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420, 429-436; Dec. Dig. <&wkey; 169(4).]
    2. Interest <&wkey;66 — Recovery — Demand — Pleading.
    In an action for damages to a shipment of live stock in the sum of $974, with a prayer for general relief, but without any special demand for interest as a part of the damages, interest might be allowed as a part of the damages, but to recover such interest the damages claimed in the pleadings must be laid in a sum sufficient to cover the loss at the time of the accrual of the cause of action, with interest thereon, from that date to the trial, and, where damages are not laid to such amount, the recovery is limited to the amount claimed.
    [Ed. Note. — For other cases, see Interest, Cent. Dig. § 147; Dec. Dig. <i&wkey;66.]
    3. Courts <&wkey;169(4) — Jurisdiction—Damages— Interest.
    Where damages are laid at a certain sum, with interest thereon at 6 per cent., the interest is then accumulated as a part of the damages, and is to be included in the amount of recovery, as affecting jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420, 429-436; Dec. Dig. &wkey; 169(4).]
    4. Carriers <&wkey;219(5) — Live Stock — Contract-Liability — Connecting Carriers.
    Under separate contracts for the shipment of live stock, limiting the carriers’ liability to injury to the cattle on their respective lines, the terminal carrier could not be charged with the negligence of a connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 950; Dec. Dig. &wkey;219(5).]
    5. Carriers <&wkey;228(l) — Live Stock — Negligence — Burden oe Proof.
    On a shipment of cattle, where the shipper accompanies them, and, under a special contract, assumes the specific duty to care for them, and the cattle are injured by lack of feed and water, the burden is upon the shipper to show negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dec. Dig. &wkey;228(l).]
    6. Damages <&wkey;62(3) — Negligence—Mitigation.
    Where a shipment of live stock is injured by the carrier’s negligence, the shipper must use all reasonable means at his command to lessen the damages which would otherwise result from such negligence, and his failure to do so will limit his recovery to such damages as would have resulted from such negligence, had such means been used.
    TEd. Note. — For other cases, see Damages, Cent 'Dig. §§ 124-127; Dec. Dig. &wkey;62(3).]

      7. Carriers <&wkey;211 — Live Stock — Facilities foe Feeding and Watering.,
    A carrier is required to furnish reasonable facilities and opportunities for feeding and watering stock shipped under a contract, requiring the shipper to care for them.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dee. Dig. &wkey;211.]
    8. Carbiees <&wkey;217(l) — Live Stock — Negligence — Contributory Negligence.
    Under separate contracts for the shipment of live stock requiring the shipper to care for, feed, and water the stock in the yards, and to unload and reload for any purpose at his own expense, and to hold the carrier harmless on account of damages to the stock while in charge of the shipper, based upon the shipper’s free transportation, the duty devolved upon the shipper as an ordinarily prudent person to feed and water the stock, and if that was not done under the necessities of the trip, considering the length of time in transportation and the condition of the stock, the carrier was not liable for the resulting damages from shrinkage.
    [Ed. Note. — For other ■ cases, see Carriers, Cent. Dig. § 981; Dec. Dig. &wkey;>217(1).]
    9. Carriers <&wkey;229(2) — Injury to Live Stock —Damages—Double Damages.
    In an action for damages to a shipment of live stock, the increased expense in caring for the stock for the purpose of recuperation could not be recovered in addition to loss from shrinkage, as it would be double damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dec. Dig. <@=>229(2).]
    10. Costs <&wkey;48 — Losing Party — Oodeeend-ants — Dismissal as to Part.
    In an action against several carriers under separate contracts for damages to a shipment of live stock,- all the costs of the trial could not be charged against the defendant against whom judgment was had, in the event that other defendants were dismissed from the cause.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 129, 192-210; Dec. Dig. &wkey;48.]
    On Motion for Rehearing.
    11. Carriers <&wkey;227(2) — Live Stock — Action for Damages — Pleading — Contributory Negligence,.
    In an action for damages to a shipment of live stock under a contract whereby the shipper was to care for, feed, and water the stock in the yards or pens, and to unload and reload them for any purpose at his expense, and to hold the carrier harmless against damage while in his charge, except that resulting from the carrier’s negligence, where the shipper alleged that the cattle were confined in the cars and pens for more than 49 hours without food, water, or rest and the carrier’s failure in its duty, and where the answers specifically pleaded the contract, that the shipper accompanied the shipment, but did not expressly aver that he failed in his duty or that the damages resulted from his negligence, though asserting, “that plaintiff should be held estopped from setting up and recovering herein on his alleged cause of action,” there was a sufficient allegation of contributory negligence to enable the shipper to meet it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 954; Dec. Dig. <&wkey;227(2).]
    Appeal from Dallam County Court; T. S. Mills, Judge.
    Action by R. L. Allen against the Ft. Worth & Denver City Railway Company and others. Judgment for plaintiff against the Ft. Worth & Denver City Railway Company, and it appeals.
    Reversed and remanded.
    J. X. Powell, of Dalhart, and Thompson & Barwise, of Ft. Worth, for appellant. Tatum & Tatum, of Dalhart, for appellees.
   HENDRICKS, J.

The appellee Allen sued the Wichita Valley Railway Company, the Kansas City, Mexico & Orient Railway Company of Texas, and the Ft. Worth & Denver City Railway Company for alleged damages to a shipment of 338 head of cattle, started on March 2, 1915, from jayton, Tex., destined Channing, Tex.

The Wichita Valley Railway Company initiated the shipment, transporting the cattle to Sagerton, Tex., there delivering the same to the defendant Kansas City, Mexico & Orient Railway Company, which transported the cattle to Ghillieothe, Tex.; thence over the line of the defendant Ft. Worth & Denver City Railway Company, to Channing, Tex., the point of final destination.

The defendant railway companies pleaded that each respectively handled and transported the plaintiff’s cattle and that the shipment was accepted and- handled by each solely under the terms of a written contract executed between plaintiff and each defendant separately, by the terms of which contracts each defendant limited its liability to injury occurring upon its own line. It is also defensively pleaded that each of said contracts provided that plaintiff was to care for, feed, water, and attend to the stock in the yards or pens at the point of shipment or elsewhere, and to load, unload, and reload at transfer points, or wherever said stock might be unloaded for any purpose, at his own expense, and that each of said defendants were to be held harmless on account of any loss or damage occurring to the ' stock while in - the charge of plaintiff, except such as resulted from the negligence of the defendants. '

The case was tried before the court without a jury, resulting in a judgment that plaintiff take nothing against the defendants the Wichita Valley Railway Company and the Kansas City, Mexico & Orient Railway Company of Texas, but that he recover from the defendant Ft. Worth & Denver City Railway Company the sum of $711, with 6 per cent, interest.

The appellant, the Ft. Worth & Denver City Railway Company,, suggests to this court a purported fundamental error, involving the question of jurisdiction of the county court in which the judgment was rendered.

The plaintiff in his petition sued for the sum of $974, and prayed:

“That upon a hearing hereof he have a judgment against the defendants for the sum of $974 as actual damages; * * * that he be granted all other relief, both general and special, in law and in equity, to which he may be justly entitled.”

The principal position is, affecting the question of jurisdiction, that:

“At the time this cause was tried, January 24, 1916, interest at 6 per cent, per annum from the date of the accrual of the cause of action amounted to $51,95, making the total amount sued for and prayed for by plaintiff $1,025.95, a sum beyond the jurisdiction of the county court.”

Assuming that that part of the prayer wherein plaintiff asked that he be granted all other relief, general and special, in law and in equity, “to which he may be justly entitled,” would ordinarily be considered a demand for legal interest as part of the damages, still there is an essential fact, producing, as we think, the interposition of a different jurisdictional principle which would prevent the application of the rule contended for by appellant. If, as stated by appellant, plaintiff’s cause of action accrued March 4, 1915, and if it would be concluded, as argued, that the original petition upon which the case was tried demanded interest on the $974, however, the petition was filed May 26, 1914. At that time interest as damages, added to the original amount sued for as actual damages, came within the jurisdiction of the county court. If we understand the rule correctly, it is elementary that a cause of ac: tion does not grow out of the jurisdiction of the court by the addition of interest as damages if at the time the suit is filed the amount in controversy falls within that court’s jurisdiction.

“Had not this wise rule been adopted, a suit might easily outgrow, .by the accrual of interest during its pendency, the jurisdiction of the forum in which it was originally properly brought; for it is settled that in such suits the original petition need not specifically include interest accrued or to accrue.” Western Union Telegraph Co. v. Garner, 83 S. W. 433.

Justice Gill further said in that cause that:

“While the rule that a plaintiff may not recover more than he demands is not applicable in its strictness to interest as interest, it is applied to interest recoverable by way of damages, and its application is rendered necessary by the fact that, while interest eo nomine is not taken into consideration in determining the jurisdiction, interest as damages is an item which must be taken into account, * * * but, because it is an item going to make up the sum total of plaintiff’s demand, it must perforce be held to be included in the sum total so stated. This was distinctly ruled in Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200. Were this not true, the difficulty would be presented here which the legislative provision as to interest as such was designed to avoid, and if the litigation pended long enough it would outgrow the court in which the suit was brought.”

Among others, appellant cites the case of International & Great Northern Ry. Co. v. Perkins, 184 S. W. 725, decided by this court. We also cite the case of Railway Co. v. Fromme, 98 Tex. 461, 84 S. W. 1054, upon which the Perkins Case is based, with the cases of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, infra. In the Eromme Case, supra, the question of the jurisdiction of the Court of Civil Appeals only was involved. Justice Brown held that the language of the statute limiting the right of appeal from the county court of Goliad county, “ ‘where the judgment or amount in controversy does not exceed $100.00,’ fixes the date of the judgment in the county court as the time at which the amount of recovery must be ascertained to determine jurisdiction.” The case of Railway Co. v. Perkins, supra, also involved the question only of the jurisdiction of this court, and a similar ruling was made. In this record the question of the county court’s jurisdiction is involved, and we think the distinction is clear and the rule efficacious as applied to this character of case in sustaining the jurisdiction of the county court in entertaining the cause.

There is another phase of this question made rather complicated by the state of the decisions, in this: It is noted that the damages laid in the original petition in this case were in the sum of $974, with a prayer which we construe as one only for general relief, without any special allegation or demand for interest' as a part of the damages. As close an analysis as we are able to give, without the actual records before us, of the cases of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, followed by us in the Perkins Case, supra, it would seem that interest as damages could be recoverable without any special prayer or special allegation for interest as a part of the damages. However, later the Court of Civil Appeals of the First District certified a similar question as involved in this record to the Supreme Court, as follows: A suit was instituted in the justice court against the San Antonio & Aransas Pass Railway Company for $130 damages arising on account of a shipment of horses. The Court of Civil Appeals said in its certificate:

“The appellant has an assignment of error to the effect that the court erred in rendering judgment for 6 per cent, interest on the amount recovered from the date of the injury because the pleadings of the plaintiff did not ask for such relief. Under the authority of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, * * * and in view of the fact that the plaintiff’s petition prays for general relief, we have ruled against the appellant on this assignment.”

Chief Justice Gaines said:

“In cases of this character interest may be allowed by way of indemnification, as a part of the damages, but is never allowed eo nomine; and therefore, in order to recover interest, the damages claimed in the pleadings must be laid in a sufficient amount to recover the loss at the time of the accrual of the cause of action, and the interest thereon from that date to the time of the trial. In this case the damages claimed were only $130. The recovery was necessarily limited to that amount.” S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 63, 64, 70 S. W. 200, 201.

A decision on the particular question was not necessary, and it- was so stated by Chief Justice Gaines. However, it is noted that the cases of Railway Company v. Jackson and Railway Co. v. Greathouse, supra, were called to the attention of the Supreme Court by the Court of Civil Appeals in its certificate, and the Addison Case must be regarded as authority. See, also, Western Union Telegraph Co. v. Garner, 83 S. W. 433; First National Bank v. Cleland, 36 Tex. Civ. App. 478, 479, 82 S. W. 337 (writ of error denied); Railway Co. v. McMillan, 37 Tex. Civ. App. 483, 84 S. W. 296; Railway Co. v. Starks, 109 S. W. 1003, 1004; Cunningham v. San Saba County, 11 Tex. Civ. App. 563, 32 S. W. 928, 33 S. W. 892; Railway Co. v. Hooser, 44 Tex. Civ. App. 231-232, 97 S. W. 708; Texarkana Water Co. v. Kizer, 63 S. W. 913.

The ease of Railway Co. v. Rayzor, by the Supreme Court, 172 S. W. 1105, also seems to predicate the question of interest as damages, wherein a matter of jurisdiction was involved, upon the character of demand and the state of the pleadings, in alleging interest. The distinction, though is to be observed where damages are laid at a certain sum “with interest thereon at the rate of 6 per cent, per annum.” The interest is then cumulative as a part of the damages, and is to be included in the amount of recovery affecting the jurisdiction. Schulz v. Tessman & Bros., 92 Tex. 490, 49 S. W. 1032; also Baker v. Smelser, 88 Tex. 29, 29 S. W. 377, 33 L. R. A. 163.

The case of International & Great Northern Ry. Co. v. Perkins, 184 S. W. 725, in construing the prayer for general relief as carrying the interest as damages in the state of the pleadings shown therein, is modified to the extent as indicated in this opinion.

We think the county court, viewing the petition in the light of the authorities, had jurisdiction of the cause of action.

The cause on its merits shows that the appellee Allen ordered the cars for the shipment of the 338 head of cattle from the Wichita Valley Railway Company’s agent at Jayton, to be loaded March 2d. The agent informed appellee to have the cattle in the pens in time for shipment at 8 o’clock that morning. The cattle were delivered in the pens on the evening of March 1, 1915, and appellee,testified there were no facilities in the pens at Jayton for watering or feeding the cattle, and they did not get them loaded until about 10 o’clock a. m. March 2d. He accompanied the shipment over the entire route and executed three separate contracts of shipment containing provisions of a limitation of liability as to injuries to the cattle on the respective lines of the connecting carriers, said contracts also stipulating that the shipper was to care for, feed, water, and attend the stock at his own expense while in the yards or pens or in the course of transportation.

The cattle arrived at Ohildress, one of the divisions on the line of t-he Ft. Worth & Denver City Railway, at 7:40 a. m., March 3, 1915. At-that time the cattle had not, been watered since the afternoon or evening of March 1st, before they were penned to Jay-ton. It is not definite at what time in the afternoon or evening the cattle were watered previous to penning the same at Jayton, but the court is entitled to the conclusion that these cattle must have gone some 30 hours or more without feed and water upon arrival at Ohildress. At Ohildress the appellee says the chief dispatcher informed him that he wanted to get his cattle to Channing by 6 o’clock that same evening, and unless he could get them there by that time he preferred to unload for feed and water at Ohildress. He had a pasture arranged for, situated about a mile out of Channing, and desired to reach there by that time for the purpose of taking his cattle to that pasture. The chief dispatcher informed him that they had a through freight train to take the cattle out of Childress, and they “ought” to get to Channing at the time mentioned. The cattle arrived at Amarillo, the next division, at 5 o’clock p. m. March 3, 1915, but were not unloaded for feed, water, or rest at that division, and neither was any request made by the shipper that he be permitted to unload for that purpose at that point. The principal delay was in the shipment of the cattle from Amarillo to Channing, a distance of 52 miles, it taking several hours to go up what is designated as “Magenta Hill,” south of Channing, and the train was handled roughly making this particular hill. “The cattle were on the train about 49 hours from the time they were tendered for shipment until delivered at Channing, being without feed or water during that time, except a little hay thrown in the pens at Channing.” The shipper knew before starting with the shipment there, wer'e no facilities at Channing for the purpose of watering and feeding said cattle. According to plaintiff’s testimony, they arrived at Chan-ning about 1 a. m. in the night. The cattle arrived at Amarillo at 5 p. m. March 3, 1915, and, having left Jayton at 10 a. m. March 2d, according to appellee’s testimony, this would make the cattle about 31 hours upon the train without feed, water, and rest; and if you add the period of time intervening between the time during the evening of March 1st when the cattle were last watered there would be a period of nearly 40 hours that these particular cattle were deprived of that particular sustenance between Jayton and Amarillo. In a shipment of cattle, where the shipper accompanies the cattle, and under a special contract assumes the duty to care for the same, if the cattle are injured for lack of feed and water, “the burden is upon the plaintiff to show negligence.” Texas & Pac. Ry. Co. v. Arnold, 40 S. W. 831.

Under the contract, based upon the consideration of free transportation, the duty devolved upon the shipper, and it was a matter addressed to his judgment, as an ordinarily prudent person, to feed and water the particular cattle; at least, if it were not done under the necessities of the trip, considering tlie length of time in transportation and the condition of the cattle, the failure from which damage resulted should not be visited upon the carrier. The general rule applies to the shipment of cattle as in any other condition:

“That, where one is injured by the negligence of another, the person injured must use all reasonable means at his command to avert or lessen the damage which would otherwise result from such negligence, and his failure to do so will limit his recovery to such damages as would have resulted from such negligence had such means been used. * * * ” Railway Co. v. Daggett, 87 Tex. 327, 28 S. W. 527.

There is no showing whatever in the record that he requested the railway company or its agents at any point to water these cattle, except as shown under the conditions existent at Childress. These cattle should have been watered at Childress, even though the chief dispatcher informed him that the train ought to get to Ohanning by 6 o’clock. Of course, the shipper could act upon the expression of the chief dispatcher as an ordinarily prudent man, and be impressed with the belief that the cattle would arrive at Ohanning by 6 o’clock, but the shipper also knew that they had not been watered since the afternoon or evening before penning them at Jay ton for shipment. Of course, a carrier is required to furnish reasonable facilities and opportunities for feeding and watering stock shipped under a contract requiring the shipper to care for his cattle; but in this case it is shown in the record that tjhe shipper did not have that consideration for his own cattle that an ordinarily prudent person should have had, and when the complaint is made as the burden of the injury in this case, and the gravamen of the negligence of the carrier asserted, that they were 48 or 49 hours on the cars without feed, water, or rest, it is also shown that the principal portion of the damage to these cattle was produced by the contributory negligence upon the part of the shipper. It is clearly deducible from the record that the judge in this instance, in awarding $711 damages for injury to the cattle, did so to a considerable extent on account of the deprivation of feed, water, and rest and the length of time the cattle were on the cars. We do not think that he could have based such a judgment upon the handling of these Cattle and the delay from Amarillo to Ohanning, and, though there is a general expression of rough handling on the defendants’ line of road, testified to by the shipper, the cdurt, no doubt, predicated the damage principally upon the conditions stated. The shipper testified in regard to the lack of facilities at Jay ton for feeding and watering cattle and a two hours’ delay at that point in starting the cattle. This, of course, under the character of contract of limited liability, and no contract for through transportation having been shown, could not be charged against the Denver. Railway Co. v. Jones, 104 Tex. 96, 134 S. W. 328.

It is raised in different phases in appellants belief that the shipper was guilty of contributory negligence in failing to care for his own cattle. This court will not permit this judgment to stand. We are not deciding that the shipper is not entitled to some damages, but we hold that on account of the apparent contributory negligence of the shipper, and on account of the testimony of the plaintiff with reference to the lack of facilities for feeding and watering the cattle at Jayton, Tex., this appellant should not be charged with the shrinkage and injury to these particular cattle which the judgment implies the court held it guilty of. The increased expense in caring for the cattle for the purpose of recuperation can neither be recovered. It would be double damages.

“To make the plaintiff whole, he should recover a sufficient sum to enable him to sell the injured property and replace it with that which is uninjured.” Panhandle & Santa Fe Ry. Co. v. Norton (decided October 16, 1916) 188 S. W. 1011, and cases cited.

The difference in market value is the criterion. The trial court should not charge all the costs of the trial against the Denver, in the event the other roads are dismissed from the cause, as decreed in this judgment.

Reversed and remanded.

On Motion for Rehearing.

The appellee in the motion for rehearing, referring to the judgment of the trial court with reference to the assessment of damages, says:

“Having the right and power to assess against the appellant such damages as he found from the evidence that the plaintiff sustained by reason of appellant’s negligence, this court cannot, as we understand the law, presume that the trial court, in awarding damages, did so to a great extent on account of the failure to feed, water, and rest the said cattle, and the length of time they were cn route, and there is no evidence to justify the conclusion of this court in the opinion rendered herein.”

We will not analyze the testimony again, except with the general statement that the burden of appellee’s testimony and of his witnesses was upon the question of the length of time these cattle were en route and confined in the cars without feed, water, and rest. We assume, of course, that he did not base such a judgment partially on the expenses of the plaintiff in recuperating his cattle, for the reason that such would be clearly double damages. If the trial court did not award the damages “to a great extent on account of the failure to feed, water, and rest said cattle,” we would be at a loss to know upon what he predicated such a judgment.

Appellee did not brief this case, and in the motion for rehearing the position is strenuously presented and argued that there is no plea of contributory negligence of the owner accompanying the cattle by the carrier upon which this court could hive reversed the trial court’s judgment.

The answer specifically pleaded the terms of the written contract of shipment and that the shipper assumed, at his own risk and expense, to care for, feed, and water the stock in the course of transportation, and also charged that the plaintiff covenanted and agreed to hold “said carrier harmless on account of any loss or damage to his said stock while being so in his charge, * * * except such damages as may result from the negligence of the carrier.”

^Paragraph 11 of defendant’s answer, in substance, alleges that plaintiff accompanied the shipment. It is true there is no averment that the plaintiff failed in his duty or that the damages or any part of same resulted from the negligence of the shipper, unless it could be said that the final allegation, asserting “that plaintiff should be held estop-ped from setting up and recovering herein on his alleged cause of action,” constitutes such an allegation.

Plaintiff alleges as one of the grounds of negligence (which the statement of facts shows constituted the principal injury to the cattle) “that said cattle were confined in the defendants’ cars and pens for more than 49 hours, without food, water, or rest,” also alleging that the railway company negligently in its duty in that respect.

When the plaintiff charge's a duty and a violation of the same as a ground of negligence, and a consequent liability against the carrier, and the defendant pleads and shows a written contract that the very same duty so charged against it, for a valuable consideration, was assumed by the plaintiff, logically upon whom would the burden of proof then exist to further proceed with the question of negligence?

“The fact that the owner accompanies the stock and takes charge of it may also be important upon the question of contributory negligence. So, where the owner accompanies the stock under a special contract to care for them himself, he may well be presumed to be as well acquainted with the facts in regard to then-loss or injury as the carrier, and, as they may have been injured because of his own negligence, or because of their inherent nature and propensities, and not by the negligence of the carrier, it is but just to require him to show the facts. The rule in such cases, therefore, is that the burden of proof is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the injury or loss, and if the carrier is liable only for negligence, the burden is upon the plaintiff to show such negligence.” Elliott on Railroads, vol. 4, § 1549.

As supporting the text, among others, the following authorities are cited: Railway Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Clark v. Railway Company, 64 Mo. 440; Railway Co. v. Weakly, 50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep. 104; Railway Co. v. Hedger, 72 Ky. (9 Bush) 645, 15 Am. Rep. 740; Grieve v. Railway Co., 104 Iowa, 659, 74 N. W. 192, 193. Thompson, in his Commentaries on the Law of Negligence, expresses the same rule (volume 6, § 7714).

Justice Stephens, in the case of Texas & Pacific Railway Co. v. Arnold, 16 Tex. Civ. App. 76, 77, 40 S. W. 829, announces the same doctrine, particularly quoting the text from Elliott on Railroads in support of the rule. The same rule is also announced in the case of Railway Co. v. Vaughan, 41 S. W. 415.

The Supreme Court of Iowa said, speaking of this character of contract:

“All this, however, the plaintiff had assumed to do, and, if his failure therein was caused by any act of the defendant, ho knew what it was as well as the company. If he demanded facilities for unloading the cattle, or for feeding and watering them, and these were not provided, or were refused, then the burden would be cast on the defendant to excuse itself for not so doing. * * * The burden is certainly on the shipper, in the first instance, to show that the injury did not result from his own negligence, and, if occasioned by failure to do what he has undertaken, then that such failure resulted from an omission on the part of the company to perform Some duty devolving upon it. This conclusion has ample support in the authorities.” Grieve v. Illinois Central Railway Co., supra, 104 Iowa, 664, 74 N. W. 193.

When the carrier pleaded, a contract, based upon a valuable consideration, that the shipper agreed to perform the very duty that he alleges the carrier should have performed (the lack of which constituted negligence), it is clear to this court that, logically, if his failure to perform the duty which he agreed to perform was caused by any act of the defendant, he was well aware of what that act was, and could have alleged and proved it. He agreed to hold the carrier “harmless” for damages to the cattle on account of failure to perform the particular duty which he charges the railroad company should have performed. When the written contract is shown the plaintiff’s duty is exhibited, and he should show, in order to impress the railroad company with the particular damages, that he was excused from the performance. We can find no authority really contrary to such a logical doctrine.

The appellee suggests a remittitur in the event the motion is overruled. On another trial, under the testimony, the jury probably could better determine the damages based on the negligence of the railway company for which it would be liable, and have a more determinable rule to ascertain this than we have in this record.

The motion for rehearing is in all things overruled.
      ite^For uther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      d&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    MECHANICS’ & TRADERS’ INS. CO. v. DALTON.
    (No. 5497.)

    (Court of Civil Appeals of Texas. Austin.
    Oct. 19, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Insurance <&wkey;668(15) — Action on Policy —Peremptory Instruction.
    In an action on a policy of fire insurance, the court did not err in refusing a peremptory instruction for defendant ignoring the issues of waiver and estoppel.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1743, 1748, 1767, 1770; Dec. Dig. &wkey;668(15).]
    2. Insurance <&wkey;668(15) — Actions on Policy —Peremptory Instruction.
    In such action the court did not err in refusing a peremptory instruction for defendant assuming, as a matter of law, that the evidence was not sufficient to raise issues of waiver and estoppel.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1743, 1748, 1767, 1770; Dec. Dig. &wkey;668(15).]
    3. Insurance <&wkey;372 — Eire Insurance — Concurrent Insurance.
    The taking of additional insurance without permission being indorsed on a policy, as required by a provision thereof, does not avoid the policy, if the insurer consents thereto.
    [Ed. Note. — For other cases, see Insurance, Cent. Dg. § 941; Dec. Dig. <@=>372.]
    4. Insurance <@=>336(1) — Concurrent Insurance-Avoidance of Policy.
    A clause in an insurance policy forbidding concurrent insurance in excess of the amount allowed is a promissory warranty, the breach of which, in the absence of waiver or estoppel, will avoid the policy.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 856; Dec. Dig. &wkey;336(l).]
    5. Insurance <@=>372 — Concurrent Insurance — Consent of Insurer — Waiver.
    _ The provision of a policy that the insurer’s written consent for insurance in excess of the amount of concurrent insurance stipulated therein must be indorsed on or attached to such policy may be waived by a duly authorized agent of the insurer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 941; Dee. Dig. <@=>372.]
    6. Appeal and Error <&wkey;934(2) — Presumption — Findings.
    In an action on a policy of fire insurance, defended on the ground of concurrent insurance not indorsed on the policy as required thereby, where the issues of waiver and estoppel were pleaded, but no request was made for their submission to the jury, it must be presumed, in support of the judgment for plaintiff, that the court found such issues in his favor, if there was sufficient evidence, to support the same.
    [Ed. Note. — Eor other cases, see Appeal and Error, Century Dig. § 3777; Decennial Dig. &wkey;934(2).j
    7. Insurance <&wkey;665(8) — Sufficiency of Evidence — Waiver and Estoppel.
    In such action facts found by the jury, and the evidence also, held sufficient to sustain findings for plaintiff on the issues of waiver and es-toppel as against the defense of concurrent insurance without insurer’s indorsement on policy.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1725; Dec. Dig. <@=>665(8).]
    8. Insurance <&wkey;661 — Action on Policy-Waiver — Evidence.
    In an action on a fire insurance policy, defended on the ground of concurrent insurance not indorsed on the policy, as required thereby, evidence as to the opinion given ,by the insurer’s employé in charge as to the property being a coinsurance risk was material as showing that the employé in fact waived the written notice as to an additional insurance.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1687, 1688, 1699; Dec. Dig. <§=>664.]
    Error from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Crate Dalton against the Mechanics’ & Traders’ Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wm. Thompson, of Dallas, and Jno. S. Patterson, of Austin, for plaintiff in error. Williams & Williams and Witt & Saunders, all of Waco, for defendant in error.

      Application for writ of error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

On May 17, 1912, the plaintiff in error issued to Otto Stalley and others, the then owners, the policy herein sued on for $5,000 on a building which had previously been used as a dormitory for the Texas Christian University, in Waco, Tex., describing the same as a dwelling. The main University building had been destroyed by fire, and the University had been moved to Ft. Worth, Tex. The policy contained a concurrent insurance clause for $15,000, and provided that any insurance in excess of that amount, without the written consent of the insurer indorsed thereon, should render the same void. Including said policy, there was at the time of its issuance insurance on said building to the amount of $15,000. This policy was issued by Hays Bros., agents of the plaintiff in error. The building had previously been insured for $25,000, a large part of which had been issued by Hays Bros. Miss Johnson was an employé of Hays Bros., and had charge of the insurance department of their business. The property was sold to defendant in error and the policies thereon properly transferred to him July 26, 1912.

On September —, 1912, defendant in error secured from Hays Bros, a 60-day permit to make improvements on said property; the purpose being to use it as a sanitarium. Improvements were in progress on said buildin'g at the time of its destruction by fire, November 11, 1912. On September 17, 1912, the defendant in error took out a policy on said building for $5,000 in the Firemen’s Fund Insurance Company through Friedlander & Leudde, insurance agents in Waco. Permission to take out this insurance was not indorsed in writing on the policy sued on, but Miss Johnson was notified by defendant in error of his intention to take out said policy, and also by Friedlander & Leudde, and was afterwards notified that it had been Issued and did not object. Payment of the policy herein sued on is not resisted on account of the issuance of this policy, hut on account of subsequent insurance, as follows: On November 6, 1912, the defendant in error procured, through Priedlander & Leudde, two policies on said building for $2,500 each. Permission to take out these policies was not indorsed on the policy herein sued on, and payment of said policy is resisted on account of the issuance of said policies.

The case was submitted on special issues, and the jury found thereon as follows:

“(1) Did Hays Bros., the local agents of the defendant, have authority under the rules and regulations of the state insurance board, and O. B. Roulet, to attach to this policy form No. 7%, designated in plaintiff’s pleading a ‘rider,’ and make it a part of said policy, thereby limiting the' amount of concurrent insurance on said property to $15,000? Answer: No.
“(2) Did Crate Dalton have and hold with Miss Johnson a conversation at or in the office of Hays Bros, between the 10th day of September and the 17th day of September in which he mentioned to her that he intended taking out additional insurance, as testified by him upon the trial of this case? Answer: Tes.
“(3) Did Crate Dalton have and hold a conversation with Miss Johnson at or in Hays Bros, office from the 17th day of September to the 1st day of November, in which he informed Miss Johnson that he had taken a policy of insurance in the Firemen’s Fund, and intended to take out additional insurance as testified to by him upon the trial of this case? Answer: Yes.
“(4) Did Crate Dalton have and hold a conversation with Miss Johnson at or in Hays Bros, office at any time from the 1st day of November to the 6th day of November in which he notified Miss Johnson that he intended to take out additional insurance as testified to by him upon the trial of this case? Answer: Yes.
“(5) Did Crate Dalton have and hold a conversation with Miss Johnson at or in Hays Bros, office at any time prior to this fire in which Miss Johnson, in substance, advised him that this was a coinsurance risk, and because of this it was not necessary to give notice of additional insurance? Answer: Yes.
“(6) Did Crate Dalton have and hold with T. D. Hays a conversation at or near the Provident Building in which he notified the said T. D. Hays that he had taken out additional insurance as testified by him Dhlton upon the trial of this case? Answer: Yes.
“(7) Did J. F. Fiekland have and hold with Miss Johnson a conversation over the telephone in which he notified her that he had written additional insurance upon this property, as testified to by him upon the trial of this ease? Answer: Yes.
“(8) Was there a change in the interest, title, or possession of the insured property by and between Crate Dalton and George S. McGhee prior to this fire? .Answer: No.
“(9) Was the property insured classified at the time of the fire by C. B. Roulet as a coinsurance risk? Answer: Yes.
“(10) Did Miss Johnson tell Mr. Fiekland over the phone that notice of additional insurance was not necessary? Answer: Yes.
“(11) Was Crate Dalton the sole and unconditional owner of the property at the time of the fire? Answer: Yes.”

The evidence is sufficient to sustain the findings of the jury, as shown by said questions and the answers thereto, and we adopt the same as a part of our findings of flaict herein, our additional findings of fact being as herein set out.

Opinion.

The first and second assignments of error relate to the refusal of the court to give peremptory instructions in favor of plaintiff in error. The court did not err in refusing these instructions for the reasons: The first ignored the issue of waiver and estoppel ; and the second assumed, as a matter of law, that the evidence was not sufficient to raise these issues.

Plaintiff in error’s first proposition under these assignments of error is as follows:

“Where an insurancei contract limits the amount of insurance to be carried upon a-risk, and further provides that the entire policy shall become null and void if the assured shall procure other insurance thereon, without the written consent of the company indorsed upon or added to said policy, it ceases to exist as a policy of insurance against loss by fire, if the assured take other insurance upon said property without the written consent of the company indorsed thereon or added thereto.”

This proposition is not correct in this: Taking additional insurance without permission being indorsed on a policy as required by a provision thereof does not avoid the policy, if the insurer consents thereto. A clause in an insurance policy forbidding concurrent insurance in excess of the amount allowed is a promissory warranty, a breach of which, in the absence of waiver or estoppel, will avoid the policy. Gross v. Insurance Co., 56 Tex. Civ. App. 627, 121 S. W. 517, citing Kelley-Goodfellow Shoe Co. v. Insurance Co., 8 Tex. Civ. App. 227, 28 S. W. 1027; Insurance Co. v. Storm, 6 Tex. Civ. App. 390, 25 S. W. 318; Insurance Co. v. Weeks, 55 Tex. Civ. App. 263, 118 S. W. 1086; Kelley-Goodfellow Shoe Co. v. Insurance Co., 8 Tex. Civ. App. 227, 28 S. W. 1027; Dumphy v. Assur. Co., 142 S. W. 116; Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Wilson v. Insurance Co., 12 Tex. Civ. App. 512, 33 S. W. 1085.

But the condition of an insurance policy requiring that the written consent of the insurer for insurance in excess of the amount of concurrent insurance stipulated therein must be indorsed on or attached to such policy/ may be waived by a duly authorized agent of the insurer. Insurance Co. v. Dalton, 178 S. W. 966; Assur. Co. v. Francisco, 58 Tex. Civ. App. 75, 123 S. W. 1144; Insurance Co. v. Griffin, 66 Tex. 232, 18 S. W. 505; Insurance Co. v. Dorroh, 133 S. W. 475.

In Insurance Co. v. McLemore, 7 Tex. Civ. App. 317, 26 S. W. 929, the court said that:

When the agent of the insurer was notified of the purpose of the insured to take out insurance in another company, it was his duty “to either consent as provided in the policy, or object to the issuance of the additional policy, and, not consenting, to cancel the previous one, and return the unearned premium. The company represented by him is therefore precluded from now taking advantage of its agent’s own wrong in failing to discharge his duty.”

In Insurance Co. v. Griffin, supra, 66 Tex. 235, 18 S. W. 506, the court said:

“It was the duty of the agent to consent and make the indorsement, or to refuse to do so, if he was informed of the plaintiff’s purpose.”

Plaintiff in error’s second proposition under said assignments of error is as follows:

“Notice by the assured to the defendant of an intention to take out additional insurance in the future, uncertain in time, uncertain in amount, and depending on a future and uncertain improvement and enhancement in the value of the property, is not such notice of the taking of other insurance as will constitute a waiver or estoppel of the conditions of the policy against additional insurance.”

The proposition is a substantial statement of what was held in Insurance Co. y. Griffin, supra, and is the law as applicable to the facts of that ease. Such, however, are not the facts in this case. Defendant in error testified that he had three conversations with Miss Johnson relative to the additional insurance. The first was on September 12th. This was about two days after the improvements began. The second conversation was soon after September 17th, the date of the Firemen’s Fund policy, and the third was on the 1st or 2d of November, four or five days before the last policies were issued. Defendant in error testified that in the first conversation he stated that he contemplated taking additional insurance as the improvements progressed; that Miss Johnson said that Hays Bros, knew the character of the building perhaps better than any one else; that they had formerly carried the insurance for the Texas Christian University, and would like for defendant in error to place his additional insurance with them; also that by reason of the money he would spend for improvements he ought to have additional insurance. He replied that he had practically promised the additional insurance to Fried-lander & Leudde up to $10,000 or $12,000.

Defendant in error) testified that in the second conversation he told Miss Johnson that he had taken $5,000 additional insurance, and that it would only be a few days until he took other additional insurance, and that he again told her that he expected to place the next policy with Friedlander & Leudde; that she said that the building had originally carried $25,000, and that it was not necessary' to give notice as to additional insurance, for the reason that it was a coinsurance risk.

Defendant in error testified:

That in the third conversation the matter of additional insurance was mentioned, and “Miss Johnson said it was not necessary to notify about the additional insurance, or something to that effect, because the building had originally carried $25,000 up to the time Stalley and them bought it. They had canceled out same, in or-dei to get the benefit of unearned premiums to pay some incidental premiums, and that was all they wanted to carry on it anyway, * * * and besides that it was a coinsurance risk.”

The jury found that defendant in error had those conversations with Miss Johnson “as testified to by him upon the trial of this case.”

Thus we see that the statement of defendant in error that he intended to take out additional insurance in the future was not “uncertain in time.” In the first conversation it was stated that it was to be taken as “improvements progressed.” The permit for improvements was for 60 days. In the second conversation, September 17th, the statement was that the additional insurance would be taken in a few days (the $5,000 policy in the Firemen’s Fund had been taken since the first conversation, of which Miss Johnson had notice). In the third conversation, November 1st or 2d, the matter of further additional insurance was mentioned (and the same was taken out November 6th). It was not uncertain as to amount. The amount was to be $10,000 or $12,000 (the amount taken was $10,000). It was not dependent on a future and uncertain improvement. The improvements were actually progressing at the time of each of these conversations, and were approaching completion at the time of the last conversation. So far as Hays Bros, were concerned, the additional insurance does not seem to have depended upon the future advance in the value of the property by reason of the improvements; as it may be fairly deduced from Miss Johnson’s statements that she thought the property would carry $25,000 insurance, without reference to such improvements.

We reversed the judgment in Reliance Insurance Co. v. Dalton, supra, on account of the refusal of the court to submit to "the jury the issues involved in plaintiff in error’s foregoing proposition. The effect of the verdict of the jury in this case is to find against plaintiff in error on those issues.

The direct issues of waiver and estoppel were not submitted to the jury. They were pleaded. No request was made for the submission of these issues. Hence it must be presumed in support of the judgment that the court found these issues in favor of defendant in error, if there was sufficient evidence to support the same. Cotton Mills Co. v. McCamy, 184 S. W. 570; Railway Co. v. Norris, 184 S. W. 262; Railway Co. v. Berthea, 179 S. W. 1087. The facts found by the jury, and also the evidence, are sufficient to sustain such findings.

Plaintiff in error insists that it is not estopped by the legal opinion given by Miss Johnson as to the property’s being a coinsurance risk. We deem this testimony material, not as showing estoppel by reason of a legal opinion given by the agent and acted upon by the insured, but as tending to show that Miss Johnson did, in fact, waive the written notice as to the additional insurance. If she thought it was a coinsurance risk, requiring no notice, why should she not have waived the written notice required by the terms of the policy? The conduct of C. B. Roulet, the insurance actuary, and agent of the plaintiff in error, in classifying the property as a coinsurance risk subsequent to the issuance of the policy herein sued on, was well calculated to cause Miss Johnson to believe that by such action the plaintiff in error had waived notice of additional insurance, and that therefore such notice by the defendant in error was not necessary.

We have carefully examined plaintiff in error’s remaining assignments of error, .and conclude that the same should be overruled.

Finding no error of record, the judgment of the trial court is affirmed..

Affirmed.
      <&wkey;For other oases see same topic ana KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: KEY, 0. j.

text:
    HAMILTON MILL & ELEVATOR CO. v. STEPHENVILLE N. & S. T. RY. CO.
    (No. 5661.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Carriers <&wkey;92 — Interstate Shipments . —Delivery on Order — Liability op Carrier.
    Where the contract of shipment provided for delivery on the shipper’s order and instructed the terminal carrier to notify the consignee of arrival of the oats, and the shipper deposited the bill of lading with draft attached, indorsed in blank, in the bank, which placed the amount of the draft to the credit of his checking account, but the terminal carrier in another state had no knowledge of such transaction, and the consignee refused the oats and protested the draft, and the shipper then repurchased the draft and bill of lading, and instructed the terminal carrier to deliver the oats to a broker, and it so delivered them, but more than 48 hours after arrival, and after such delivery the broker secured judgment by default against the shipper for $50 less than the value of the oats, the difference being adjusted by stipulation, the shipper could not, as a matter of law, recover from the initial carrier the value of the oats.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 343, 364-366; Dee. Dig. &wkey;92.]
    2. Carriers <&wkey; 178 — Interstate Shipments —Liability of Carrier.
    In such action, the terminal carrier was liable only as a warehouseman, and not under Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 804r-S12; Dec. Dig. <&wkey;178.]
    3. Carriers &wkey;>92 — Interstate Shipments— Statutes Governing.
    In an action for value of goods taken on execution against the shipper in favor of his consignee, the liability of the initial carrier is to be tested by that of the terminal carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 343, 364 — 366; Dec. Dig. <@=>92.]
    Error from Hamilton County Court; J. L. Lewis, Judge.
    Action by H. M. Weiser, trading as the Hamilton Mill & Elevator Company, against the Stephenville North & South Texas Railway Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    H. E. Chesley and Dewey Langford, both of Hamilton, for plaintiff in error. E. B. Perkins and D. Upthegrove, both of Dallas, and A. R. Eidson, of Hamilton, for defendant in error.
   KEY, 0. j.

The real plaintiff in this case was H. M. Weiser, though he prosecuted the suit in his trade-name of the Hamilton Mill & Elevator Company. He sought to recover from the Stephenville North & South Texas Railway Company, the initial carrier, the value of a certain car of oats shipped by him in his trade-name to Montgomery, Ala. The defendant’s answer admitted certain allegations in the plaintiff’s petition, denied others, and specially pleaded that, under the law of Alabama, if a shipment was not removed in 48 hours after notice of arrival, the carrier became a warehousemán, and as more than 48 hours elapsed after notice of arrival in this case, it was not liable. It also alleged that after arrival the shipment was rejected by the consignee, and that, upon being notified of that fact, the plaintiff instructed that the oats be turned over to the Dahlberg Brokerage Company, which was done, and the defendant thereby absolved from further liability under the bill of lading. The defendant further pleaded in bar a judgment by the city court of Montgomery, Ala., in favor of the Dahlberg Brokerage Company and against the plaintiff Weiser, by which judgment all of Weiser’s interest was divested out of the oats. Replying by supplemental petition, the plaintiff denied that the Dahlberg Brokerage Company !was his agent, and denied that the terminal carrier had any right to deliver the shipment to the Brokerage Company, and denied that the plaintiff had any knowledge of the judgment pleaded by the defendant. It was further alleged in the supplemental petition that on the date of the shipment the plaintiff transferred the bill of lading with draft attached to the Hamilton National Bank, and that the latter thereby became the owner of the property shipped, and that thereafter, on the 17th day of August, and after the rendition of the judgment by the Alabama court, the plaintiff acquired title to the property from the Hamilton National Bank. There was a non-jury trial, which resulted in a judgment for the defendant, and the plaintiff has brought the case to this court by writ of error.

We have considered all the questions presented in the briefs, and have reached the conclusion that the judgment should be affirmed ; and, without any further discussion, we adopt the findings of fact and conclusions of law filed by the learned trial judge, which are as follows:

“Findings of Fact.
“(1) I find that the Hamilton Mill & Elevator Company is a trade-name under which H. M. Weiser does business at Hamilton, Tex., and that on June 27, 1912, said Weiser delivered to the Stephenville North & South Texas Railway Company, which was at such time and is now a common carrier, a car of oats for through shipment to Montgomery, Ala.
“(2) I find that the contract of shipment, among other things, provided that said oats be delivered to shipper’s order, and instructed that the terminal earner, which was the Mobile & Ohio Railway Company, notify Belser Grocery Company, of Montgomery, Ala., of the arrival of said car of oats. In this connection I find that said ear of oats had been sold to said Belser Grocery Company by said Weiser.
“(3) I further find that on the said 27th day of June, 1912, said Weiser indorsed in blank and delivered or deposited the bill of lading to said car of oats, with draft attached on-Belser Grocery; Company for $471.48, to the Hamilton National Bank, and that said amount was placed to the checking account of the said Weiser, he being at the time a patron of said bank; but in this connection I find that the said Mobile & Ohio Railway Company had no knowledge of such transaction between said Weiser and said bank at any time prior to the delivery of said oats as hereinafter found. Neither did the Dahlberg Brokerage Company have knowledge of said transaction.
“(4) I further find that the bill of lading, with draft attached, was sent to the wrong party, and that there was some delay in presenting the same to the Belser Grocery Company, and that said company refused to receive said oats, and that the draft attached to the bill of lading was protested on the 5th of August 1912.
“(5) I further find that after said draft was protested it was returned to the Hamilton Nat-tional Bank, and on the 17th day of August, 1912, said Weiser piaid said bank the amount of said draft and received back said bill of lading.
“(6) I further find that, after the refusal by the said Belser Company of said car of oats, which oats arrived in due time, and no complaint as to its condition appears to have been made, said Weiser was notified of such refusal, and instructed the Dahlberg Brokerage Company to make indemnity bond and take out the oats and do the best it could with them. In this connection I find that said Mobile & Ohio Railway Company was shown the instructions, which were by wire to the Dahlberg Brokerage Company, and that the Dahlberg Brokerage Company put up with said Mobile & Ohio Railway Company a certified check for the amount of $471.48, plus ten per cent., which cheek was received by said Mobile & Ohio Railway Company, and said car of oats, in accordance with said instructions by wire, was delivered to said Dahlberg Brokerage Company in good condition.
“(7) I further find that the contract of shipment between the said Stephenville North & South Texas Railway Company and the said Weiser, among other things, provided that after 48 hours elapsed after the shipment arrived, the liability of the railroad company as a common carrier ceased, and after said 48 hours the liability was that of a warehouseman. In this connection, I also find that the law of Alabama provides that after 48 hours the carrier’s liability as such ceased, and the liability is then that of a warehouseman only.
“(8) I further find that more than 48 hours elapsed after the arrival of said oats at Montgomery, Ala., before its delivery to said Dahl-berg Brokerage Company and notice to Belser Grocery Company.
“(9) I further find that after the execution and delivery of said certified check and the delivery of said oats on the order of said Weiser to the said Dahlberg Brokerage Company, said brokerage company instituted suit in the city court of Montgomery, Ala., against said Weiser, and garnisheed the said Mobile & Ohio Railway Company in said suit. In this connection I find that said court in Alabama has jurisdiction of the subject-matter of this suit; that the question of the ownership of said oats, or the proceeds thereof, was a material question in said suit, and that said Mobile & Ohio Railway Company and the said H. M. Weiser were properly served with the necessary process to give the court jurisdiction of said company and of said Weiser, who was a nonresident and did not answer, and said judgment,_ under'the laws of Alabama, was and is a valid judgment, and is still subsisting as such valid judgment. I also find that said court was a court of record.
“(10) I further find that in said suit said Dahlberg Brokerage Company recovered judgment against said Weiser in the sum of $- and costs of suit, amounting to $423.81, and that it also recovered against said Mobile & Ohio Railway Company, as garnishee, the amount so recovered, together with cost, amounting to the sum of $423.81; but I further find, in this connection, that by agreement in open court the difference coming to the said Weiser in excess of the amount recovered in said suit was to be adjusted between the parties without that issue being raised in this suit, the plaintiff in this suit in open court expressly stating such, and the defendant in this suit assenting thereto.
“(11) I further find that the said Weiser visited Montgomery, Ala., during the pendency of the controversy out of which this suit grew» and that he wrote a letter to his agent in Hamilton, or rather to himself as Hamilton Mill & Elevator Company, in which he stated, among other things, the following: T have gone over the controversy between the Hamilton Mill & Elevator Company and Dahlberg Brokerage Company with reference to commissions and also with reference to the rejected car consigned to Bolser Grocery Company, and find the same to be all right and honestly handled by Dahlberg Brokerage Company.’
“Conclusions of Law.
“I find, as a matter of law, that under the above state of facts the plaintiff is not entitled to recover against the defendant, and accordingly here enter judgment that plaintiff take nothing by this suit, and that the defendant go hence without day and recover of and from the plaintiff all cost m this behalf expended, for which execution may issue.
“The above are all my conclusions of law; but, referring to the third paragraph of the motion for new trial, I will state this: In giving1 judgment, among other things, I said that under the law of Texas, had the Hamilton National Bank been a party to this suit, the doctrine of the case of Adoue & Lobit v. Seeligson, and many other cases cited by counsel, would apply as between the bank and plaintiff in the Dahl-berg Brokerage Company’s suit. In this case, however, as the bill of lading or the waybill made the delivery of the oats subject to shipper’s order, and the shipper having ordered it delivered to Dahlberg Brokerage Company, and the Mobile & Ohio Railway Company not knowing of any transaction between shipper and the bank, such doctrine would not apply, as. this suit is brought under the Carmack Amendment to the Interstate Commerce Act, and the liability of the defendant in this suit must be tested by the liability of the terminal carrier, the Mobile & Ohio Railway Company. Besides this, I held that the 'judgment in the Dahlberg Company’s suit was not subject to collateral attack on jurisdictional or other questions involved therein. I also held that the liability of the Mobile & Ohio Railway Company was that of a warehouseman, and that no judgment under the Interstate Commerce Act could be had against said Mobile & Ohio Railway Company. In other words, this action cannot be sustained under the federal law.”

Judgment affirmed.
      d&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    BUELL PLANING MILL CORP. v. BULLARD et al.
    (No. 7042.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1916.)
    1. Mechanics’ Liens <&wkey;315 — Contractor’s Bond — Materialman as Beneficiary — Failure to Give Notice.
    Where the bond of a contractor for a church building provided that the bond was for the use and benefit of all persons who became entitled to liens under the contract and might be sued upon by them as if executed to them, and was-conditioned that the contractor pay all indebtedness, etc., and complete the contract free of mechanics’ liens, a materialman who did not give notice to the church in the time and manner specified by statute was entitled to sue the sureties on the bond for the payment of his debt.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. &wkey;>315; Contracts, Cent. Dig. §§ 793, 794.]
    2. Appeal and Error &wkey;^154(4) — Right to Appeal — Contractor’s Bond — Sureties.
    In an action by a materialman against the contractor and sureties on his bond, which was for the benefit of all persons who became entitled to liens, where the contractor admitted liability, and exceptions of sureties to complaint were sustained, plaintiff’s election to take judgment against the contractor was not voluntary so as to prevent him from seeking relief by appeal from the error committed in sustaining the exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 966-968; Dec. Dig. <&wkey;> 154(4).]
    3. Appeal and Error &wkey;>1173(3) — Reversal-Effect — Party Not Party to Appeal.
    Under the statute providing that there shall be but one final judgment in a case, although there may be several defendants, and no final judgment can be rendered against one until rendered as to all, however independent of each other their respective defenses may be, in an action against a contractor sureties on his contractor’s bond, a judgment against the contractor on his admission of liability and sustaining exceptions of sureties to the complaint was a final one disposing of the case as to all parties, so that on an appeal from the court’s action in sustaining the exceptions, to which the contractor was not a party, a reversal for error will operate as a reversal as to all parties including the contractor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4570; Dec. Dig. <S^1173(3).
    For other definitions, see Words and Phrases, First and Second Series, Final Judgment.].
    Error from District Court, Ellis County; F. L. Hawkins, Judge.
    Suit by the Buell Planing Mill Corporation against E. S. Boze and others. From a judgment for plaintiff against named defendant, but sustaining exceptions of defendants George P. Bullard and others, and from an order overruling plaintiff’s motion for new trial, plaintiff brings error.
    Reversed and remanded.
    Locke & Locke, of Dallas, for plaintiff in error. G. C. Groce and J. L. Gammon, both of Waxahachie, for defendants in error.
   RAINEY, C. J.

This suit was brought by Buell Planing Mill corporation to recover from E. S. Boze and his bondsmen, George P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison, and J. L. Gammon, a balance of $809.84, and interest, for certain building material supplied to said Boze for use in the construction of a church building in Abilene, Tex. The cause was tried by the court without a jury, and judgment was rendered in favor of the plaintiff against E. S. Boze for $902.49, and costs. But, certain exceptions by the other.defendants to the plaintiff’s petition having been sustained, and the plaintiff having declined to amend, judgment was rendered that the plaintiff take nothing against them. The plaintiff filed a motion for new trial, and duly assigned therein the errors of the. court in sustaining such exceptions, and on the overruling of such motion prosecuted a writ of error to this court for the revision of the judgment.

The exceptions sustained to plaintiff’s petition were as follows:

“(1) It does not appear from said petition that plaintiff ever had any lien or right of lien against the First Baptist Church of Abilene, Tex., or that it ever became entitled to a lien upon said church under the contract between said church and defendant Boze, alleged in said petition, according to the provisions of law in such cases made and provided.”
“(3) It does not appear from said petition that plaintiff ever fixed a lien upon the church mentioned therein or ever became entitled to fix a lien upon said church according to the provisions of law in such cases made and provided, or ever attempted so to do.”

To this ruling of the court the plaintiff duly excepted and assigns error.

The petition, after omitting formalities, reads as follows:

“(1) Under date of October 20, 1909, the defendant E. S. Boze, who is a contractor by occupation, entered into a written contract with the First Baptist Church of Abilene, Tex., for the erection of a church building on lots 4, 5, and 6 in block 47 of the city of Abilene, Tex. In said contract the said defendant Boze agreed to furnish all the labor and material for said building and to deliver the same complete to said the Baptist Church of Abilene, Tex. He also agreed to furnish said the Baptist Church of Abilene, Tex., with a release from any liens or rights of lion against said property or building by means of a bond annexed to said contract. In pursuance of said agreement, said bond was duly executed by the defendant Boze and by all of the other defendants herein, and duly delivered to said the Baptist Church of Abilene, Tex. Said bond is in words and figures substantially as follows:
“ ‘Know all men by these presents that I, E'. S. Boze, and the following signers, of the city of Waxahachie, county of'Ellis, state of Texas, are held and firmly bound unto trustees of First Baptist Church of Abilene, county and state, as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned, in the sum of ten thousand six hundred and eighty-seven and 6 Vino dollars lawful money of the United States of America, to be paid to the said trustees of the First Baptist Church of Abilene, and to said parties' who may be entitled to liens, their executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, one and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.
“ ‘Sealed with our seals; dated this 20th day of October, 1909.
“ ‘The condition of this obligation is such that, if the above-bounden E. S. Boze, his executors, administrators, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in above-mentioned contract, entered into by and between the said E. S. Boze, of Waxahachie, Texas, and the said trustees of First Baptist Church of Abilene, dated on the 20th day of October, 1909, for the construction of the work or works on the lot mentioned in the foregoing contract, and shall and duly and promptly pay and discharge all indebtedness that may be incurred by the said contractor in carrying out the said contract, and complete the same, free of all mechanic’s liens, and shall truly keep and perform the covenants, conditions, and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney’s fees, in enforcing the payment and collection of any and all indebtedness incurred by said E‘. S. Boze in carrying out the said contract, then the above obligation shall be void; else to remain in full force and virtue.
“ ‘This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.
“ ‘In testimony whereof witness the hands and seals of the said E. S. Boze and said bondsmen hereto affixed the day and year above written.
“ ‘[Signed] 'E. S. Boze.
“ ‘Geo. P. Bullard.
“ ‘W. A. Crow.
“ ‘R. C. Johnston.
“ ‘J. W. Harrison.
“ ‘J. L. Gammon.’
“(2) Thereupon the defendant Boze commenced the erection of said building, purchasing such materials as were needed therefor from time to time; and as the work progressed said the First Baptist Church of Abilene, Tex., made payments to said Boze on account thereof, in accordance with said contract. Thereafter, in December, 1910, said building was completed, and was delivered to and accepted by said the Baptist Church of Abilene, Tex., and the balance due of the entire contract price of $42,790 was thereupon paid by said the Baptist Church of Abilene, Tex. The payments so made by said the First Baptist Church of Abilene, Tex., and especially the payment last made as aforesaid, were made in reliance upon the bond aforesaid.
“(3) During the erection of said building the plaintiff corporation, which is engaged in the business of manufacturing and selling building material, furnished to the said Boze at his instance and upon his order, for use in the erection of said building, a large amount of material, the items whereof are set forth in a verified account attached to this petition, marked Exhibit A, and hereby made a part thereof. All of said material was furnished by the plaintiff to be used in the erection of said building, and all of the same actually was used in the erection thereof. For all of said material, excepting the last three items thereof, to wit, 18 window stools lVie by 11 % by 5-0, 14 window stools IVig by 11% by 4-0 and 1 window stool li/i6 by 11% by 8-0, the said defendant Boze promised, and became liable, to pay to the plaintiff the sum of $2,250 in cash; and for said three items of material the said defendant Boze promised and became liable to pay to the plaintiff the reasonable value thereof, which was the sum of $11.50 in cash. Thereafter, on account of said material, the said defendant Boze paid tó the plaintiff in the aggregate the sum of $1,451.66. The items of said payments are set forth in the verified account attached to this petition, marked Exhibit A, and made a part hereof. But the remainder of the sum which the said defendant Boze so promised to pay and became liable to pay, though long since past due, has never been paid by the said defendant Boze or by any one else for him. Frequent and repeated demands have been made upon him for the payment thereof, but he has failed and refused to pay the same or any part thereof.
“(4) By the terms of the bond aforesaid the defendants bound themselves not only to the trustees of the First Baptist Church of Abilene, Tex., but also to all persons who might become entitled to liens under said building contract, in the sum of $10,687.50, conditioned, among other things, that the said defendant Boze should duly and promptly pay and discharge all indebtedness that might be incurred by him in carrying out said contract, and it was expressly- provided in said bond as aforesaid that the same was made for the use and benefit of all persons who might become entitled to liens under said contract, according to the provisions of law in such cases made and provided, and that it might be sued upon by such persons as if executed to them in proper person.
“(5) The indebtedness to this plaintiff above set out was incurred by the said defendant Boze as contractor in carrying out said building contract, and this plaintiff by reason of the facts hereinbefore set forth was one of those who, according to the provisions of law in such eases made and provided, might become entitled to a lien under said building contract, and was entitled to a lien, and so was one of those for whose benefit said bond was executed and to whom the defendants bound themselves thereby.
“(6) By reason of the premises the defendants bound themselves, and became liable, jointly and severally, to pay the plaintiff the amount of the indebtedness aforesaid, together with interest thereon, at the rate of 6 per cent, per annum.”

The first proposition submitted by plaintiff in error is:

“The averments of the petition that the defendant E. S. Boze was under contract with the church for the erection of the building, that the material in question was purchased by him and supplied to him for use in the construction thereof, and that it was used in the construction thereof are sufficient to show that the plaintiff is one of the persons for whose benefit the bond sued on was executed, even though it be not alleged that at the time and in the manner speci-. fied by statute the plaintiff gave notice to the church of its claim, and filed affidavit and statement thereof in the office of the county clerk of the county.”

In sustaining said exceptions to the petition we are of the opinion that the court erred. In the case of Bullard v. Norton, 182 S. W. 668, decided by our Supreme Court, where the bond was the same as here sued on, it was held that a cause of action in favor of a materialman was given and upon that case our holding is based and the citing of other authorities is unnecessary.

It is contended, however, by defendant in error that, after exceptions were sustained to the cause of action as to the sureties, plaintiff refused to amend and elected to take judgment against Boze, the principal in said bond, with an award of execution, which is final, and which operates as a release of the sureties, as Boze is not a party to this writ of error.

The proposition is submitted that:

“In this state of the record we submit that this action operated legally as a discontinuance as to the sureties; for under our statutes there can be but one final judgment in a suit.”

It is argued that:

Had said exceptions been overruled, defendant in error “would have had the right then to have pleaded over against Boze and to have judgment over against him for any amount that might have been adjudged against them.”

Our statute provides, as h. general rule, for the rendering of but one final judgment in a case, but we do think this rule will not be infringed by a reversal here. Boze admitted his liability, and the sustaining of the fexcep tions by the court as the case was on trial left plaintiff no other alternative but to take judgment on Boze’s confession, so such election by plaintiff was not voluntary, and should not prevent his seeking relief from the error committed by appeal. Before plaintiff could have recovered judgment against the sureties it was necessary that judgment be rendered against Boze, and to say under the circumstances that plaintiff has no relief against the injustice done him is evidently not contemplated by law.

The judgment in this case was a final one, disposing of the case as to all parties. It is erroneous as relates to defendants in error. Boze confessed judgment, and cannot complain. He is not made a party to this appeal, but the case is here, and, as the sureties were deprived of an opportunity to have judgment over against him in the event one was rendered against them, we think a reversal in thisi case operates as a reversal as to all parties, which will afford such relief to the sureties as they may be entitled to on a new trial.

Under the principle laid down in Wootters v. Kauffman, 67 Tex. 489, 3 S. W. 465, followed in case of Nasworthy v. Draper, 29 S. W. 557, and Reed v. Cavitt, 10 Tex. Civ. App. 373, 30 S. W. 575, this judgment is reversed, and cause remanded.
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