Mexican Central Railway Co. v. Locke

126 S.W. 296, 59 Tex. Civ. App. 402, 1910 Tex. App. LEXIS 390

• Court: Court of Appeals of Texas
• Decided: March 2, 1910
• Status: Published

Opinion

KEY, Chief Justice.

Otto Locke brought this suit against the G., H. & S. A. Railway Company, the I. & G. N. R. Co., and T. J. Freeman, receiver of that company, and the Mexican Central Bailway Company, Limited, to recover damages for alleged injuries sustained by a shipment of goods, consisting in two boxes of nursery stock and two bales of moss, alleged to have been shipped from New Braunfels, Texas, to Ortiz, Mexico.

Upon a plea interposed by him, Freeman, the receiver, was dismissed from the suit, and the trial between the plaintiff and the other defendants was had before the court without a jury. All the other defendants filed answers, that of the Mexican Central Railway Company consisting of a general demurrer and general denial. The trial court rendered judgment in favor of the other two defendants, and in favor of the plaintiff against the Mexican Central Railway Company, and that defendant has brought the case to this court upon a writ of error.

We sustain the first assignment of error which challenges the judgment on account of the insufficiency of the testimony. As charged in that assignment, the statement of facts is entirely without evidence showing that the property shipped belonged to the plaintiff. The plaintiff testified that he made the shipment of nursery stock, and that it was consigned to Pablo Hoffman at Ortiz, Mexico. He nowhere testified that the property belonged to him, or that he had any interest in it after it was delivered to the I. & G. N. R. Co. at New Braunfels, Texas. The testimony referred to constituted prima facie evidence of title in Pablo Hoffman, consignee. (Texas Cent. Ry. Co. v. Dorsey, 30 Texas Civ. App., 377, 70 S. W., 577; Haynie v. Missouri Pac. Ry. Co., 78 S. W., 1042; St. Louis, S. F. & T. Ry. Co. v. Alverson, 52 Texas Civ. App., 321, 114 S. W., 673, 6 Cyc., 511, and authorities there cited.)

It is also contended that the proof failed to show that the property referred to ever reached the line of the Mexican Central Bailway and went into its possession. There is some testimony upon that subject, but it is very meager and unsatisfactory.

All the other assignments are overruled.

As between the plaintiff and the defendants T. J. Freeman, Receiver, the I. & G. N. R. Co. and the G., H. & S. A. Ry. Co.,- the judgment is affirmed, while as between the plaintiff and the Mexican Central Railway Company the judgment is reversed and the cause remanded for another trial.

Affirmed in part and in part reversed and remanded.