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[1, 2] Appellant complains that it was er- | This relieves the injured person from suing ror to dismiss the G., T. & W. Ry. Co., having all the connecting carriers to have his rights been used jointly with it by appellees, as settled, in a controversy between the carriers violation of a constitutional and property to fix as between themselves the apportionright. If such was error because under the ment of damages. The change much simexisting law only the plaintiff could bring plified the procedure, so that the carrier who all the parties before the court, which would is adjudged to pay for the loss and damages have enabled appellant to plead over against, may still recover when it pays the damages, it does not appear that said dismissed defend- in another suit between the carriers, for it ant was ever served with process or appeared is much easier for them to locate the damand answered in the case, nor was there any age on the proper carrier than a stranger. pleading of appellant to hold the defendant This does not deprive the carrier of any in court. Besides there was no exception constitutional right. The railroads, being taken by appellant at the time to the ruling common carriers, incorporated with large of the court, and it now comes too late. Un- sovereign powers, are subject to the laws der the circumstances there was no error in passed by the Legislature regulating their the action of the court in allowing the dis- operation and conduct, providing a proper missal. Austin & Clapp v. Jordan, 5 Tex. and simple rule of procedure in the courts. 130; Dean v. Duffiel et al., 8 Tex. 235, 58 Such laws do not oppose any legal or con. Am. Dec. 108; Horton v. Wheeler, 17 Tex. stitutional right. Galveston, H. & S. A. Ry. 52; White v. Leavitt, 20 Tex. 704; Shipman Co. .v. Piper Co., 52 Tex. Civ. App. 568, 115 S. V. Allee, 29 Tex. 17; Davis v. Willis, 47 Tex. W. 107; I. & G. N. v. Wilbourne (Tex. Civ. 154; Houston E. & W. Ry. Co. v. Waltman App.) 115 S. W.'111; G., H. & S. A. v. Wal(Tex. Civ. App.) 132 S. W. 518.

lace (Tex. Civ. App.) 117 S. W. 169; Texas & [3] Article 732 of the Revised Civil Stat- Pac. v. Bigham (Tex. Civ. App.) 47 S. W. utes was so amended that for any damage to 814; G., H. & S. A. Ry. Co. v. Johnson (Tex. or loss of any freight, etc., sustained any. Civ. App.) 133 S. W. 725; St. L. & S. F. Ry. where over connecting lines (as defined in Co. v. Heyser, 95 Ark. 412, 130 S. W. 562, article 731) the damaged person is authorized Ann. Cas. 1912A, 610; Pittsburgh, C., C. & St. to sue either or all of such connecting car- L. V. Mitchell, 175 Ind. 196, 91 N. E. 735, 93 riers who may be held liable to such person. N. E. 996; Welch Lumber Co. v. N. & W. Under this act the provision of article 1830, Ry. Co., 137 App. Div. 248, 121 N. Y. Supp. subd. 25, of the Statutes of 1911, allowing ap- 985; G., H. & S. A. Ry. Co. v. Wallace, 223 portionment of damages, shall not be appli- U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516; L. cable to suits brought under the provisions & N. Ry. Co. v. Scott, 219 U. S. 209, 31 Sup. of the act except at the request of the plain- Ct. 571, 55 L. Ed. 183; Atlantic Coast Line tiff. But the rights of the carriers who may Ry. Co. v. Riverside Mills, 219 U. S. 186, 31 be held in damages could recover in a proper Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. action the amount of damages and costs it s.) 7; Carmack Amendment to Hepburn Act has been made to pay for the carrier for of June 29, 1906, c. 3591, 34 Stat. 584 (U. S. whose negligence the damages were incurred. Comp. St. $8 8604a, 8604aa). We cannot see how it can be contended that As seen from the authorities cited, the this amended act denied appellant or any Carmack amendment differs very slightly other railroad any right, or deprived it of the from the Texas statute, and has been vigor“due process” law so often asserted in a last ously attacked by that numerous array of refuge, as a denial of the equal protection of brilliant legal talent such as is usually emthe law as guaranteed under section 1 of ployed by railroads from the Atlantic to the Amendment 14 of the United States Consti- Pacific Coast, and you might add in all the tution, depriving appellant of life, liberty, or state and federal courts, and it has been reproperty without due course of the law of peatedly sustained. This case does not dethe land as guaranteed by section 19 of arti- pend altogether upon the statute laws of the cle 1 of the Constitution.

state to sustain the judgment, but was tried It must be remembered that the change com- upon an agreed statement of facts that avoidplained of is that under the former act the in- ed the necessity of other proof, and this nocent carrier could implead and recover over agreed statement supports the findings and against its connecting carrier, one or more, the conclusion of the learned trial judge. and cause an apportionment of damages in the Having examined all the assignments and judgment on the trial. That cannot now be propositions presented by appellant, we find done, because that right is left to the damaged no reversible error assigned, and affirm the person to bring them all before the court. judgment of the trial court.

(248 S.W.)

6. Pleading 236(6)-Allowance of trial ST. LOUIS, B. & M. RY, CO. et al. v, LANE. amendment discretionary with the court. (No. 6859.)

In an action by a stock shipper against

initial and connecting carriers for damages to (Court of Civil Appeals of Texas. San An- shipment, the allowance of an amendment to tonio. Jan. 17, 1923. Rehearing the petition during the trial amplifying and exDenied Feb. 7, 1923.)

plaining the allegations of the petition was

within the discretion of the court. 1. Carriers w219(1)-Oral contract valid and binding on "connecting carrier."

7. Appeal and error Om 1041 (2)-Allowance of Under Vernon's Ann, Civ, St. Supp. 1922,

trial amendment of petition not prejudicial art. 731, defining connecting carriers as all

where no showing by adverse party of inabil

ity to avoid surprise. carriers transporting property received by either, for shipment or transportation between Defendant carriers sued for damage to a points within the state on a contract of car- shipment of cattle were not prejudiced by the riage, and permitting proof of contract by evi- allowance of a trial amendment to the petidence other than bills of lading, or other in- tion amplifying and explaining its allegations, struments issued by the carrier, a verbal con- where, in their application for a continuance on tract for through shipment will bind each car the ground of surprise, no showing was made rier whether the route is chosen by shipper that they could not readily procure the necesor carrier.

sary testimony to meet the allegations if a

short recess (Ed. Note.-For other definitions, see Words the trial lasted a number of days after the

were taken, particularly where and Phrases, Second Series, Connecting Car- trial amendment was filed, during which time rier.)

the defendants might have overcome their sur

prise. 2. Carriers Sa 219(5)-Liability of initial and connecting carriers begins on delivery to car

8. Evidence 471 (24)–Testimony of shiprier.

per as to effect of loading on cows not obUnder Vernon's Ann. Civ. St. Supp. 1922,

jectionable as conclusions. art. 732, each connecting carrier is liable for damages occurring during transportation, and,

In an action by cattle shipper against carwhere there was a contract to furnish cars riers for damage to shipment, his testimony for shipment of cattle at a specified time and as to the effect of the manner of loading on place, the transportation began when the cat- cows in a certain condition, objected to as the tle were delivered under the contract.

conclusion of the witness, and not because wit

ness was not an expert, was properly admit3. Carriers em 226–Initial and connecting car- ted; the testimony being as to facts, not conriers properly joined in suit for damages.

clusions, In an action for damages to shipment of

9. Witnesses cattle for failure to furnish sufficient cars and

268(13)-Cross-examination failure to furnish proper and suitable pens

properly limited. and facilities for receiving and caring for the

In an action by a shipper against carriers, stock and negligence in loading and rough han- the court properly refused to permit unreasonding while in the cars, there was no misjoinder, able cross-examination as to market value of under Vernon's Ann. Civ. St. Supp. 1922, arts. cattle, the only effect of which could be to 731, 732, as contended by the connecting car- prolong the trial. rier, where plaintiff claimed no damage as the result of the initial carrier's delay in furnish- | 10. Carriers w223—Availability of other ing the cars as agreed.

route no defense in action for negligent dama

age to shipment. 4. Carriers w219(1) - Connecting carrier

In an action by a cattle shipper against bound by oral contract where it accepted initial and connecting carriers for damages to shipment without writing.

shipment, testimony in behalf of the carriers Where a connecting carrier which was the that plaintiff could have driven his cattle across only possible route between points of origin country to a shipping point on the connecting, and destination accepted a shipment of cattle carrier's line, thus not using the initial carrier's from the initial carrier without a written con- line at all, was properly excluded as utterly tract, it thereby became a party to the parol impertinent; the contributory negligence of contract of shipment made between the initial shipper in using either of defendant's lines not carrier and shipper and is bound by its terms. being a defense to the action. 5. Carriers w219(5)-Liability of connecting 11. Appeal and error Eww1048(6)–Error in carrier commenced when cattle were placed not permitting more than one attorney to par. in cattle pens for shipment.

ticipate in cross-examination not available Where the contract between shipper and

where no injury shown. initial carrier was oral, the liability of both the Error cannot be predicated on the action initial and the connecting carriers began when of the court in limiting cross-examination of the cattle were placed in the cattle pens at the plaintiff's witnesses to that attorney who at point of origin, and the connecting carrier is the time was conducting the examination, where subject to the initial carrier's liabilities and no injury appears to have resulted to appelentitled to its legal exemptions.

lants therefrom. w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error dismissed for want of jurisdiction March 28, 1923.

12. Carriers w219(5)-Ownership of stock Seabury, George & Taylor, of Brownsville,

pens where carrier received cattle held im- for appellee.
material in action against initial carrier for
damage to shipment.
In an action by cattle shipper against ini-

FLY, C. J. This is a suit for damages altial and connecting carriers, the ownership of leged to have accrued to appellee by reason cattle pens at the point of origin is immate

of a failure to furnish sufficient cars for a rial, where the cattle were placed in such pens cattle shipment, and failure to furnish propwith the knowledge and consent of the initial er and suitable pens and facilities for receive carrier and were received by it in such pens. ing the cattle and caring for them, and neg13. Carriers w227(3)-Incompleted written ligence in loading and rough handling while contract properly excluded in action for dam- in the cars. The suit was filed by appellee ages to shipment under oral contract. against the San Benito & Rio Grande Valley

In an action by cattle shipper against ini. Railway Company and the St. Louis, Brownstial and connecting carriers for damages to ville & Mexico Railway Company and was shipment under an oral contract with initial submitted on special issues to a jury, and carrier, where there was no evidence tending to

on the answers thereto judgment was renshow any written contract, the court properly dered in favor of appellee as against the San excluded a written contract prepared by the carrier but not signed nor, so far as the evi- Benito & Rio Grande Valley Railway Comdence discloses, ever known to plaintiff.

pany for $1,465 and against the St. Louis,

Brownsville & Rio Grande Railway Company 14. Evidence 323(4)-Market reports at distant points not admissible to show value for the full amount, and each road was given

for the same sum, and against them jointly of shipment.

a judgment over against the other for any In an action by cattle shipper for damages sum over $1,465 it might be compelled to pay. to shipment, live stock market reports, show

A brief containing 264 printed pages has ing the value of cattle at a point 500 miles distant from points between which shipment been filed by appellants, containing 90 assignwas made, was properly excluded as not per- ments of error, and 87 propositions, and altinent to the value of the shipment.

though 9 pages of the brief of appellants are

consumed in stating the nature and result of 15. Trial uw 308—Reading portions of testi. the suit, there is nothing to indicate the mony to jury at its request after retirement not improper.

amount of the judgment or against whom it

was rendered. That was disclosed in the In an action by cattle shipper against carriers for damage to shipment, there was no

statement under proposition No. 87. Sixtyimpropriety in the action of the court, at the

seven authorities are cited by appellants and request of the jury after their retirement, to 42 by appellee. This is the state of the rechave read to them by the court's stenographer ord as presented by the briefs. in the presence of the court and the parties a We gather from the statement of facts portion of the testimony of a certain witness that the cattle in question were delivered to

the San Benito & Rio Grande Railway ComOn Motion for Rehearing.

pany and were received from it by the St. 16. Carriers 227(1)-Petition sufficiently Louis, Brownsville & Mexico Railway Comalleging through stock shipment.

pany and were damaged in the sum found by Petition by shipper of live stock alleging the jury through the negligence of the apreceipt by initial carrier and acceptance of pellant as alleged by the appellee and found shipment for safe carriage over its road and by the jury. defendant's connecting line of road from and between designated stations sufficiently alleged non's Supp. 1922 Civ. Stats., that all car

[1-3] It is provided in article 731, Verthrough shipment.

riers of Texas over whose lines property is 17. Evidence on 22(3)-Courts will tako judi- transported which has been received by cial notice of connecting lines of carriers.

either of such carriers for shipment or transTexas courts judicially know that there is, and can be, only one connecting carrier with the portation between intrastate points on a con

tract for carriage acted upon by such carS. B. & R. V. G. Ry., the initial carrier of a shipment between Rio Hondo, in Cameron riers shall be considered connecting, lines and county, and Edinburg, Hidalgo county.

agents of each other. The article also pro

vides that proof of a contract may be made Appeal from District Court, Hidalgo Coun- by evidence, other than by a bill of lading, ty; Hood Boone, Judge.

waybill, receipt, check, or other instrument

issued by the carrier. Under this statute a Action by S. E. Lane against the St. Louis, verbal contract for a through shipment to Brownsville & Mexico Railway Company and point of destination would bind each of the another. Judgment for plaintiff, and defend connecting carriers whether the route was ants appeal. Affirmed.

chosen by shipper or carrier. · Under the Graham, Jones, Williams & Ransome, of terms of article 732, either or all of the conBrownsville, and W. G. B. Morrison, of San necting carriers which the person damaged Benito, for appellants.

may elect to sue are held liable for any dam.

(248 S.W.) age sustained anywhere during transporta-1 lines of the initial carrier, each of the comtion of the property, and there shall be no panies on the route accepting the freight unapportionment of damages unless the shipper der the contract becomes subject to the ini. requests it, but any connecting line may re tial carrier's liabilities, and entitled to its cover from the negligent line the damages legal exemptions under the contract. Bird not accruing on its line. The statute makes v. Railway Co., 99 Tenn. 719, 42 S. W. 451, each connecting carrier liable for all damages 63 Am. St. Rep. 856. Our statute places conoccurring during transportation, and where necting carriers in Texas in the same posithere is a contract to furnish cars at a cer- tion. tain time and place, the transportation is The liability of the initial carrier began held to have begun when the cattle were de as soon as the cattle were delivered to it at livered under the terms of the contract. If the place appointed for such delivery. Elunder the terms of the contract appellee was llott on Railroads, $ 1403; Moore on Carriers, to have his cattle in the pens, to be provided $ 130; London Ins. Co. v. Rome Railroad by appellant at a certain time and place, and Co., 144 N, Y. 200, 39 N. E. 79, 43 Am. St. be so placed his cattle, the cattle were then Rep. 752. If the liability for the safe transaccepted for shipment by the initial carrier portation began when the cattle were placed and the transportation began under the ar- in the pens for shipment, the liability of the ticles cited. Railway v. Waggoner National connecting carrier began under the statute. Bank, 36 Tex. Civ. App. 293, 81 S. W. 1050. The matter of failure to furnish cars was It was alleged that the cattle were delivered eliminated so far as the connecting carrier to the initial carrier at Rio Hondo, in Cam- was concerned by a charge requested by such eron county, on November 3, 1920, for ship-connecting carrier and given by the court. ment on its line to San Benito, and from The jury were required to find, and did find, there on the line of the connecting carrier to damages arising from the negligence of apEdinburg, in Hidalgo county, Tex. There pellant "in receiving, handling, transporting were allegations that the initial carrier had and delivering said cattle," and did not find agreed to have six cars at Rio Hondo on any damages arising from a failure to furOctober 27, 1920, and that appellee had gath-nish cars. ered his cattle on that date, but there is no [6] In his first amended petition, appellee, allegation of delivery until November 3, after alleging in detail the delivery of six 1920. Under the allegations the cattle were cars of cattle to the initial carrier on Novemnot delivered nor accepted until November | ber 3d, alleged the delivery of a seventh car3d. and it is distinctly alleged that on that load on November 7, 1920. In a trial amenddate the initial carrier "agreed to safely and ment the allegation as to the seventh car of securely carry, convey and transport the cattle was amplified, and it was also pleaded same from Rio Hondo, Cameron county, Tex. that the stock pens for shipping cattle from to Edinburg, Hidalgo county, Tex." The Rio Hondo station were at a point on the pleadings fail to indicate that any damages road known as Fernando, and the pens there accrued to appellee by reason of the delay in were known as the Rio Hondo pens, and used furnishing the cars, but show that the dam as the shipping place for cattle for Rio ages resulted from defective pens, rough | Hondo station, and appellee was told by the handling, and delay in the transportation. I agent at Rio Hondo that the cattle should be There was no misjoinder of parties or action placed in the pens at Fernando, which was as claimed by appellants in their first propo situated about three miles from Rio Hondo sition, but the parties were properly joined at the terminus of the railroad. There were under the statute cited. What has been said no pens at Rio Hondo or nearer than Ferin connection with the first proposition dis- nando. In the trial amendment it was allegposes of the second, third, fourth, fifth, and ed that the cattle in the seventh car were sixth propositions adversely to appellants. eight days on the road from Fernando to

(4, 6] There could be but one connecting car- Edinburg. Amendment of a pleading during rier to the initial carrier in a shipment of cat- a trial is held to be within the discretion of tle between the two points named, and the sec | the trial judge. Dublin v. Railway Co., 92 ond railroad must have been in contemplation Tex. 535, 50 S. W. 120; Slaughter v. Hall, of the parties when the contract of shipment 63 Tex. Civ. App. 473, 133 S. W. 496; Pitzer was entered into, and when the second road

v. Decker (Tex. Civ. App.) 135 S. W. 161. accepted the cattle without a written contract The trial amendment was sufficient to permit it became a party to the parol contract made proof. The seventh proposition is overruled. by and between the agent of the initial car The petition was sufficient to charge negrier and appellee and is bound by its terms. ligence as against both railroad companies, The liability of the connecting carrier be and the eighth, ninth, tenth, eleventh, fan when the cattle were placed in the cattle twelfth, and thirteenth propositions are overpens at the starting point. Elliott on Rail-ruled. roads, 8 1446. The rule is that where a con [7] There was no new matter included in tract of shipment is for through transporta- | the trial amendment filed by appellee. It ton over a designated route, and beyond the merely explained the situation and location

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of the pens at Rio Hondo and amplified the ters would have been bettered by other de pleading as to the seventh car, Appellants nials of expansion. must have known all the facts pleaded before [12] It was a matter of no concern or im announcing ready for trial, and the witnesses portance whatever as to the ownership of the necessary to meet the original or first amend- pens at Fernando. The cattle were placed ed original petition would be known to meet | in them with the knowledge and consent of all matters alleged in the trial amendment. the initial carrier and were received by it in Appellants could not have been surprised at the pens. The thirty-first and thirty-third the allegations in that pleading. They sought propositions are overruled. a continuance of the cause on the ground of [13] Appellee alleged that he had a consurprise, but made no showing that they tract with the initial carrier and proved an could not in a short time get the necessary oral contract as he had the right to do untestimony to meet the allegations if a short der his pleadings. There was no evidence recess in the trial were taken. The trial tending to show that a written contract was lasted for a number of days after the trial entered into by appellee, and it would have amendment was filed, and appellants might been the grossest error to have permitted aphave overcome their surprise in that time. pellants to have introduced in evidence a The fourteenth, fifteenth, and sixteenth prop- written contract prepared by it but not signositions are overruled.

ed nor, so far as the record discloses, ever The seventeenth, eighteenth, nineteenth, heard of by appellee. He shipped under a twentieth, twenty-first, and twenty-second parol contract alone and knew nothing of propositions are mere reiterations of matters any written contract. The numerous dediscussed hereinbefore, are not meritorious, cisions cited fail to sustain the thirty-second and are overruled.

proposition, and it is overruled. [8] It was not error to permit appellee to [14] The court very properly refused pergive an opinion as to the effect of certain mission to appellants to use the "Fort Worth loading on cows in a certain condition. The Daily Live Stock Reporter" in order to show evidence was not objected to because not by its reports what the value of cattle was that of an expert, but because it was the con- in Fort Worth on the 2d, 3d, and 4th of No clusion of the witness in which there was no vember, 1920. The market value of cattle in merit. He stated facts, not conclusions. The Fort Worth, over 500 miles distant from Rio twenty-third proposition is overruled.

Hondo or Edinburg, had no more pertinency [9, 10] The cross-examination of Lane as to the facts of this case than the value of to market value of cattle, as proposed by ap- cattle on those days in New York or Boston. pellants, was unreasonable, and the court The thirty-fourth proposition is overruled. properly denied such a line of cross-exami The thirty-fifth, thirty-eighth, thirty-ninth, naţion, which would have had no result ex- and fortieth propositions are utterly without cept to prolong a trial, unnecessarily prolong- merit and are overruled. ed anyway, and interpolate other trivial mat [15] The jury requested, after their retireters among the numerous ones dragged into ment, that the evidence of one Cantu on a this record. Neither was it permissible to certain point be read to them by the court repermit testimony to the effect that appellee porter. We can see no impropriety in this, could have driven his cattle to San Benito or and the authorities which appellants deemed Harlingen and loaded them there and not of so much importance as to copy with a pen have used the initial carrier's line at all. into the brief have no relevancy or pertiThis testimony was utterly impertinent. Ap-nency to the contention of appellants. The pellee might have driven his cattle all the evidence of Cantu had been taken down by a way to Edinburg and avoided both lines, but court stenographer, and it was read to the that was not a defense to the negligence of jury in the presence of the court and parties. the common carriers which under the law he The thirty-sixth and thirty-seventh proposisaw fit to utilize. It may have been contrib- tions are overruled. utory negligence for appellee to use either The forty-first to the eighty-seventh propor both of the two lines, in the light of the ositions, inclusive, overruled. They facts; but we do not think that it was a de- seek to present matters already discussed fense to this action. The twenty-fourth, and disposed of herein. Our conclusions of twenty-fifth, twenty-sixth, twenty-seventh, fact dispose of a number of them. Every twenty-eighth, and twenty-ninth propositions question of any importance should have been are overruled.

fully presented to this court in a brief of 50 [117 The thirtieth proposition assails the or 60 pages, with not more than 12 or 15 action of the court in confining objections propositions of law discussed. It is merely to testimony to the attorney for appellants an ordinary case of damages arising from a who at the time was conducting an exami- cattle shipment. nation, and this is made the subject of assign The judgment is affirmed. ment and proposition; but it does not appear that any injury resulted to appellants there

On Motion for Rehearing. by. The time consumed in the trial and the Appellant cites the cases of Railway V.

are

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