Texas N. O. R. Co. v. Conn

30 S.W.2d 939, 1930 Tex. App. LEXIS 781

• Court: Court of Appeals of Texas
• Decided: May 28, 1930
• Docket: No. 9431.
• Status: Published

Opinions

This is a suit by appellees to recover damages for injuries to cattle shipped by appellees over the defendant railroads from Camptown, Tex., to Fort Worth, Tex.

The following sufficient summary of the allegations of the petition is copied from appellees' brief:

"It was alleged that appellees (plaintiffs below) delivered the cattle to the initial carrier about 1 P. M. on November 21 1925, and that they were fat beef cattle ready for immediate slaughter, and that defendants were under the duty to handle them with ordinary care, and deliver them within a reasonable time, alleged to be 24 hours. That in violation of its duty under the contract the cattle were unloaded at Beaumont and confined in close pens for a period of 16 hours and then re-loaded and delivered at Fort Worth Stock Yards at about 1 P. M. on November 23, 1925, which was on Monday. Plaintiffs alleged that defendants handled the cattle in a rough, careless, and reckless manner in the unloading, re-loading, and transporting same, and when they reached their destination they were skinned, bruised, crippled, and shrunken, which greatly depreciated their market value. That three of them were dead, and six crippled, and the rest skinned and bruised. The plaintiffs alleged that by reason of their condition arising by reason of their being unloaded and their rough, careless, and reckless handling, and jostling in the cars and their failure to reach their destination on Sunday so they could fill with feed and water, their market value was greatly depreciated. Plaintiffs alleged their damages as being the difference between their market value in the condition in which they should have arrived and the market value in which they did arrive, which plaintiffs alleged to be the sum of $2506.48, and 6% interest thereon from November 23, 1925."

The defendants answered by general demurrer, special exceptions, general denial, and special pleas. The nature of the special exceptions and pleas pertinent to the questions discussed and determined in this opinion will be hereinafter shown. The general demurrer and special exceptions of defendants were overruled by the court, and, upon the conclusion of the evidence, the case was submitted to a jury upon special issues.

In response to the issues submitted to them, the jury found:

"(a) That the appellants did not fail to transport the shipment to Fort Worth within a reasonable time;

"(b) That the appellants did handle the cattle in a rough and careless manner, and that such handling was negligence and the proximate cause of their injury;

"(c) That the cars were not overloaded;

"(d) The damages were not proximately caused by the inherent vices, weaknesses, etc., of the cattle;

"(e) That the failure of the caretaker `to attend' the cattle while en route from Jacksonville to Fort Worth was not a proximate cause of the damages;

"(f) That it was necessary, in the exercise of ordinary care, for the welfare of the cattle, for appellants to unload same at Beaumont;

"(g) That appellees have been damaged in the sum of $691.67, and were entitled to interest thereon at the rate of 6% per annum from November 23, 1925, until the date of the trial."

In accordance with this verdict judgment was rendered in favor of plaintiffs against the defendants.

The following are the special exceptions to plaintiffs' petition which were overruled by the court:

"Defendants specially except to paragraphs 7, 8, 9 and 10 of plaintiffs' first amended original petition, in so far as said paragraphs contain allegations to the effect that these defendants handled the cattle in question in a rough, careless and reckless manner during transportation, unloading and re-loading of the same, in that:

"(a) Said allegations are vague and indefinite, and do not apprise these defendants in what manner they roughly, carelessly and recklessly handled the cattle, and at what point on the route from Camptown to Fort Worth such negligent acts were committed;

"(b) For the reason that said allegations are too general, insufficient to apprise these defendants of the facts the plaintiffs will submit as constituting rough, careless and reckless handling of said cattle, and where such acts were committed;

"(c) For the reason that said allegations are but conclusions of the pleader and do not set out any facts which would amount to or might amount to negligent acts on the part of these defendants during transportation."

We think these exceptions should have been sustained. The petition shows upon its face that the shipment was en route for approximately 48 hours, and that it moved over the lines of four railroad companies for a distance of approximately 400 miles. The allegations of the petition give no information or intimation to the defendants of the facts upon which the allegations of "rough, careless and reckless handling of the cattle" are based, nor of the place along the route at which said alleged negligence occurred.

An essential requirement of proper pleading is that it must notify the opposite party of the facts relied on and expected to be proven to sustain the ground of recovery or defense asserted by the pleadings, and such facts must be alleged with the certainty that will enable the adverse party in the exercise of reasonable diligence to produce the evidence necessary to meet the allegations. Telegraph Company v. Mitchell, 91 Tex. 454, 44 S.W. 274, 40 L.R.A. 209, 66 Am.St.Rep. 906; Warren v. La Salle Co. (Tex.Civ.App.) 262 S.W. 527, 530.

It could hardly have been possible for the plaintiffs to have employed more general and indefinite terms in alleging the facts relied on to support their allegations of actionable negligence on the part of defendants in the performance of their contract for the transportation of these cattle.

The allegations of "rough, careless and reckless" handling of the cattle amount to little, if anything, more than a conclusion of the pleader, and, when we add to this that the petition wholly fails to allege the place or places along the 400-mile route at which such alleged "rough, careless and reckless handling" occurred, it seems clear to us that this pleading fails to give the defendants the notice they were entitled to have to properly prepare their defense, when they asked for such notice by their special exceptions. Ft. Worth D.C. Ry. Co. v. James, 39 Tex. Civ. App. 408, 87 S.W. 730; Missouri, K. T. Ry. Co. v. Garrett, 39 Tex. Civ. App. 246, 87 S.W. 172; Missouri Pac. Ry. Co. v. Hennessey, 75 Tex. 157, 12 S.W. 608; Hall v. Johnson (Tex.Civ.App.)225 S.W. 1110.

These allegations of the petition are sufficient against a general demurrer, and, if plaintiffs had been in position to meet the special exceptions by alleging they were unable to plead more definitely the acts of negligence relied on for recovery, the special exceptions might have been properly overruled, but no such answer was made to the exceptions, and the undisputed facts in the record show that plaintiffs had a caretaker for the cattle, who was furnished transportation by the defendants and accompanied the shipment from its place of origin to destination. In these circumstances no presumption of negligence would arise from proof of the good condition of the cattle when received by the carrier and their injured condition when delivered at their destination, but it devolved upon plaintiffs to sufficiently allege and prove the acts of negligence relied on for recovery. Ry. Co. v. Ohlhausen (Tex.Civ.App.)272 S.W. 224; Ry. Co. v. Southern Pine Lumber Co. (Tex.Civ.App.)6 S.W.2d 418.

It may be conceded, as is earnestly insisted by appellees, that the evidence is sufficient to sustain the verdict of the jury that the defendants were negligent in the operation of their trains and that plaintiffs' cattle were injured as a proximate result of such negligence in a greater amount than was found by the jury, but these facts cannot cure the error of the court in not sustaining the special exceptions to the petition and requiring plaintiffs to inform the defendants of the acts or omissions of defendants' employees constituting the alleged negligence and the place at which such acts or omissions occurred. In the absence of this information in the pleading, defendants were placed under an unreasonable burden in procuring the evidence necessary to properly present their defense.

The record shows that the cars in which the cattle were shipped were transported over four different railroads by trains operated by four different crews, each crew consisting of a conductor, engineer, fireman and brakeman. In addition to this, the shipment was handled by two switching crews, one at Beaumont and one at Fort Worth, and by an unloading and reloading crew at Beaumont. Not being informed by the pleading at what place or on what road the alleged rough, careless, and reckless handling of the shipment occurred, to meet these general allegations with the testimony of all those having probable knowledge of the facts involved would have required appellants to have procured the attendance or taken the deposition of all the members of the various crews who operated these trains and handled these cattle.

No such burden can be properly placed upon a defendant when the plaintiff has sufficient knowledge of the facts to give the defendant definite information which would relieve him of such burden. This record well illustrates the injury which a defendant will often sustain by the failure of the plaintiff in his pleadings to inform the defendant as definitely as he may of the facts relied on to sustain his claim. The only evidence upon which the verdict for damages for injury to the cattle caused by the alleged "rough, careless and reckless handling" of the shipment was the testimony of the caretaker who went with the cattle that between Beaumont and Jacksonville and between Jacksonville and Fort Worth the train carrying the cars of cattle was frequently stopped and started with such sudden and violent jerks and jars as to throw the cattle down, and that, when these cattle arrived at Fort Worth, "a lot of them were down in the cars, some of them were dead, and some were crippled." The only witnesses appellants had at the trial to refute this testimony as to the negligent handling of the train were the conductor in charge of the train from Beaumont to Jacksonville and the conductor in charge from Jacksonville to Fort Worth; each of these conductors testifying that there was no unnecessary or unusual stopping or starting of his train, and no unusual or unnecessary jerks or jars in stopping or starting it. If appellants could have had these witnesses corroborated by the testimony of the engineer, fireman, and brakeman on each of these trains, the finding of the jury upon this issue would probably have been different. If the exceptions to the petition had been sustained and the plaintiffs had been required to definitely inform appellants by their pleading of the facts constituting the alleged careless handling of the train, and the place or places at which it occurred, appellants' failure to produce the testimony of the other operatives of the train would have been their fault, and might reasonably justify the inference by the jury that the absent operatives of the train would not have corroborated the conductors.

We do not think that, in the absence of the information sought by the exceptions and which was within the knowledge of the plaintiffs, appellants were required to incur the expense of producing the testimony of all of the operatives of the trains of the four railroads that transported the cattle, or subject themselves to the damaging inference which the jury might have drawn from their failure to produce this testimony. This was the situation in which appellants were placed by the ruling of the court on their special exceptions.

The application of the rule of pleading invoked by appellants is not affected by the fact that the shipment in this case was under a through bill of lading, unless it be that such fact tends to accentuate the right of appellants to require plaintiffs to definitely allege the facts constituting the negligence charged in the petition, and the railroad on which such negligence occurred.

We know of no decision and can think of no sound or just reason which authorizes the application of a different rule of pleading in suits against a railroad company from that applicable in suits against any other defendant.

Defendants specially pleaded that the injury to plaintiffs' cattle during their transportation "was the direct result of the inherent vices, weaknesses and natural propensities of the animals." In support of this plea the defendants offered to prove by the witness L. Roberts, who inspected the cattle on their arrival at Fort Worth, that "these cattle were wild and when wild cattle are confined in a car they get scared much easier than gentle cattle. I have noticed several times the South Texas Brahmas. When they meet other trains, they will all crowd into one end of a car and crowd each other down on the floor. They are just so wild that anything scares them and they crowd from one end of the car to the other."

The undisputed evidence shows that these were Brahma cattle, and the offered testimony upon its face appears to us to have been relevant and admissible upon the defense pleaded by appellants and submitted to the jury. When this offered testimony is considered with the other testimony in the case showing that during the transportation of these cattle many trains passed the train on which they were being transported, and the further testimony of the conductors who testified for the defendants that there were no violent, unusual, or unnecessary jerks or jars to the train caused by the manner in which it was stopped and started along the route, it tends to support the pleaded defense that the injuries to the cattle by being thrown on the floor of the car and trampled upon was due to their natural propensities, and not to any negligent handling of the train by its operatives.

The only answer made by appellees to the assignment complaining of the ruling of the court refusing to admit the offered testimony is that the bill of exceptions taken to the ruling of the court fails to state the grounds of plaintiffs' objection to the testimony. This is no answer to the assignment. The bill of exceptions was approved by the appellees' attorney and the trial judge without any qualification, and, so far as this record shows, there was no specific ground stated in the objection made to the admission of the testimony. The evidence being prima facie admissible, appellants cannot be deprived of the benefit of having it considered by the jury because appellees' attorney failed to state the ground on which he objected to its admission. If there was any valid ground for excluding the testimony, it devolved upon appellees' attorney and the trial court to have it so appear by the bill of exceptions or be otherwise shown by the record.

If other errors are shown by the record, they are not deemed material nor such as are likely to occur upon another trial, and need not be discussed.

For the errors above pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.