International & Great Northern Railway Co. v. Anderson

21 S.W. 691, 3 Tex. Civ. App. 8, 1893 Tex. App. LEXIS 172

• Court: Court of Appeals of Texas
• Decided: March 1, 1893
• Docket: No. 90.
• Status: Published

Opinion

KEY, Associate Justice.

There is evidence in the record to support the following propositions, which we adopt as findings of facts:

1. May 2, 1888, appellee shipped 52 head of horses over the International & Great Northern Railway, the Missouri, Kansas & Texas Railway, and the Missouri Pacific Railway, from San Antonio, Texas, to Hannibal, Missouri.

2. These horses were shipped under the written contract attached to plaintiff’s petition, marked exhibit A.

3. After they had passed off the defendant’s, and while on the Missouri, Kansas & Texas and Missouri Pacific Railways, through the negligence of the Missouri Pacific Railway Company, which was then operating the International & Great Northern Railway, the Missouri, Kansas & Texas Railway, and the Missouri Pacific Railway, making a continuous line from San Antonio, Texas, to Hannibal, Missouri, the horses were injured and damaged as alleged to the extent of $260.

4. At the time in question, and under a contract with appellant, the latter’s railway extending from San Antonio to Taylor, Texas, was controlled, managed, and operated by the Missouri Pacific Railway Company; and said company had like control of the Missouri, Kansas & Texas Railway, extending from Taylor to Port Worth and Denison, Texas, operating these and other roads as the Missouri Pacific Railway system.

Though appellant’s answer denied under oath the existence of the partnership charged in the petition, it did not in like manner deny the allegation that the Missouri Pacific Railway Company executed the contract attached to appellee’s petition as agent for appellant; and it was proper to admit the contract in evidence, though it did not show on its face that it was executed for or on behalf of appellant. Rev. Stats., art. 1265; Water Works v. White, 61 Texas, 538; Bradford v. Taylor, 61 Texas, 509; Railway v. Tisdale, 74 Texas, 8.

There was no error in admitting the testimony of the witnesses Singer, Anderson, and Nash. They showed themselves sufficiently acquainted with the market value of such live stock at and in the immediate vicinity of Hannibal, Missouri, the point to which the horses were shipped, to qualify them to give evidence on the question of value. 1 Suth. on Dam., 769.

Appellant having accepted the horses for shipment, it can not excuse itself from liability for injuries resulting from delay in their transportation upon the ground that there was an unusual rush of business on its road.

The volume of business offered to or accepted by a common carrier can not avail to relieve it from the performance of a contract already entered into. An excess of business might, under some circumstances, justify a refusal to accept live stock for shipment, but it could not excuse a nonperformance of contract obligations.

Appellant assigns as error the refusal of the court to charge the jury, that appellee could not recover unless it was shown that appellant received the freight charges, or part of the profit arising from the transportation ■of his animals.

For two reasons the charge was properly refused: first, because a partnership may be shown by proof of an agreement to divide receipts or profits, without showing such division; and second, appellant having failed to deny under oath that the contract sued on was executed by its authority and for it, independent of the question of partnership, it was liable for any breach thereof. It could bind itself as a joint obligor without being a partner.

It is claimed that the contract sued on exempts appellant from liability beyond its own road; and that as the injuries complained of occurred on the lines of the Missouri, Kansas & Texas and Missouri Pacific Railways, the suit can not be maintained.

Though the contract purports on its face to be only an agreement between appellee and the Missouri Pacific Railway Company, it is charged in the petition, and not denied under oath, that said company executed it for itself and as agent of the Missouri, Kansas & Texas Railway Company and the International & Great Northern Railway Company.

The contract shows that at the time in question the Missouri Pacific Railway Company was operating, in connection with its own road, certain leased lines of railway, and the evidence discloses that the roads belonging to the International & Great Northern Railway Company and the Missouri, Kansas & Texas Railway Company were two of the lines thus operated.

The twelfth stipulation in the contract reads as follows: “And it is further stipulated and agreed between the parties hereto, that in case the live stock mentioned herein is to be transported over the road or roads of any other railroad company, the said party of the first part shall be released from liability of every kind after said live stock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees; the understanding of both parties hereto being that the party of the first part shall not be held or deemed liable for anything beyond the line of the Missouri Pacific Railway Company, excepting to protect the through rate of freight named herein.”

It is quite clear, in so far as the Missouri Pacific Railway Company is concerned, that every line of road then operated by it is to be regarded as part of “ the line of the Missouri Pacific Railway Company,” as that phrase is used in this paragraph of the contract; and we see no sufficient reason why it should be construed otherwise in determining appellant’s liability.

There being no sworn denial of the averment in the petition that the contract was executed by the Missouri Pacific Railway Company as agent for the other two companies, as well as itself, we think the contract must be construed as a joint obligation by the three companies to safely and with reasonable diligence transport the property shipped from San Antonio, Texas, to Hannibal, Missouri; and that the stipulation above quoted should be interpreted, as to each company, as exempting from liability only in the event of loss or injury upon a road not embraced in the system of roads operated by the Missouri Pacific Railway Company.

' To hold otherwise, and construe the contract as contended by appellant, would be to materially change or treat as surplusage the last clause in the twelfth stipulation above quoted; and this we do not feel authorized to do.

Appellant having contracted as a common carrier to transport the stock from San Antonio, Texas, to Hannibal, Missouri, in the absence of a stipulation fixing liability otherwise, it was liable for the entire route, in the same manner and to the same extent as while the animals were on the line of its own road. Railway v. Pratt, 22 Wall., 123; Id., 594.

This case is distinguishable from Railway v. Campbell, 1 Texas Civil Appeals, 509. While the petition in that case charged that the contract was executed for the defendant, it did not distinctly allege a joint obligation, as in this case, and the opinion treats the contract as evidencing a separate obligation on the part of the International & Great Northern Railway Company.

Considering all the terms of the contract, this may have been inaccurate; but it was immaterial, because under the facts of that case, regarding the contract as either joint or several, the defendant was not liable except as stated in the opinion. Nor was it necessary in that case, as it is in this, to determine the effect to be given to the concluding clause in the stipulation limiting liability to the company’s line, wherein it stated that liability was not to exist beyond the line of a designated road.

It is urged that error was committed by the trial court in not enforcing that part of the contract which attempted to fix the measure of damages by the value” of the animals at San Antonio, Texas, instead of at the place of destination. The case of Railway v. Greathouse, 82 Texas, 108, settles this contention against appellant.

Appellant has pointed out no available error, and the judgment will be affirmed.

Affirmed.

Delivered March 1, 1893.