Opinion
March 15, 1911. Rehearing Denied April 12, 1911.
Appeal from District Court, McLennan County; Marshall Surratt, Judge.
Action by Bush Witherspoon Company against the Gulf, Colorado Santa Fé Railway Company and the Ft Worth Rio Grande Railway Company, in which each defendant asks judgment over against its codefendant in case of an adverse judgment. Judgment for plaintiff against both defendants, and for the Ft. Worth Company against the Santa Fé Company, and the latter appeals. Affirmed.
Terry, Cavin Mills and A. H. Culwell, for appellant.
Andrews, Ball Streetman and Waller S. Baker, for appellees.
This suit was brought by Bush Witherspoon Company against appellant and the Ft. Worth Rio Grande Railway Company, to recover the value of 62 bales of cotton shipped over the lines of said companies to its order at Galveston, Tex., alleging that said companies were connecting lines, and that said cotton was shipped on a through bill of lading.
The defendant the Ft Worth Rio Grande Railway Company answered, admitting receipt of said cotton, but alleged that it had delivered the same to its codefendant in due course of business, and that if said last-named company had not delivered same to plaintiff, then it had converted same to its own use, praying that in the event it should be adjudged to pay therefor that it have judgment in its favor over against the Gulf, Colorado Santa Fé Railway Company for whatever sum it might be so held to pay. The latter company answered, denying its liability, alleging that it never received said cotton from its codefendant the Ft. Worth Rio Grande Railway Company; but that if plaintiffs should recover against it, then it prayed for a judgment over against the Ft. Worth Rio Grande Railway Company for whatever sum may be so adjudged against it. There was a jury trial, resulting in verdict and judgment in favor of plaintiff against both companies for the sum of $4,312.10, and in favor of the Ft. Worth Rio Grande Railway Company against the Gulf, Colorado Santa Fé for $2,990.65, and in favor of the latter company against the Ft. Worth Rio Grande Railway Company for the sum of $1,324.45, from which judgment the Gulf, Colorado Santa Fé Railway Company alone has appealed, urging, first, error in the refusal of the court to give its special charge, to the effect that as to the liability between the two defendants the burden of proof was upon the Ft. Worth Rio Grande Railway Company to show that it delivered the cotton in question to its codefendant the Gulf, Colorado Santa Fé Railway Company.
The only issue submitted to the jury was with reference to the respective liabilities of the two defendants to each other. Upon this subject the court charged the jury, in effect, that, if the Ft. Worth Rio Grande Railway Company delivered to the Gulf, Colorado Santa Fé the cotton in question for shipment to Galveston, it would be entitled to recover against said company the reasonable value of such cotton so delivered; but that if they believed the 62 bales of cotton were not delivered by the Ft. Worth Rio Grande Railway Company to the Gulf, Colorado Santa Fé Railway Company, or if only a portion thereof was delivered by the Ft. Worth Rio Grande Railway Company to the Gulf, Colorado Santa Fé Railway Company, then they would find for the Gulf, Colorado Santa Fé Railway Company against the Ft. Worth Rio Grande Railway Company the value of such portion of said cotton, if any, as they might find was not delivered by the Ft. Worth Rio Grande Railway Company to the Gulf, Colorado Santa Fé Railway Company. So that the issue as to whether or not the cotton in question, or any part thereof, was in fact delivered by the Ft. Worth Rio Grande Railway Company to the Gulf, Colorado Santa Fé Railway Company, and the consequent liability of appellant, dependent thereon, was clearly and pertinently presented to the jury. This being true, the law seems to be that it was not essential, and therefore not error, to refuse to give the requested special charge on the subject of the burden of proof. See Houston T. C. Ry. Co. v. Dotson, 15 Tex. Civ. App. 80, 38 S.W. 642; Stooksbury v. Swan, 85 Tex. 566, 22 S.W. 963; Blum v. Strong, 71 Tex. 324, 6 S.W. 167; Railway v. Taylor, 79 Tex. 114, 14 S.W. 918, 23 Am.St.Rep. 316; Kirby v. Estell, 24 Tex. Civ. App. 108, 58 S.W. 254; Britt v. Burghart, 16 Tex. Civ. App. 82, 41 S.W. 389; Davis v. Davis, 20 Tex. Civ. App. 313, 49 S.W. 726. See, also, vol. 3, Rose's Notes, p. 1011, and authorities there noted, to the effect that a charge is sufficient, if it indicates the questions of fact to be found, without charging upon the burden of proof.
There was evidence in the record showing and tending to show that the Gulf, Colorado Santa Fé Railway Company had received and receipted for said cotton from the Ft. Worth Rio Grande Railway Company, which made a prima fade case in favor of the latter company. This being true, before the former company could recover, it was necessary for it to show that it had not in fact received said cotton, and thereby discharge the burden cast upon it by the prima fade case so made. So that it seems to us it would have been error on the part of the court in this state of the proof to have given the special charge as requested. See Texas Express Co. v. Dupree and Pacific Express Co., 2 Willson, Civ.Cas.Ct.App. § 321a.
The remaining assignments question the sufficiency of the proof to sustain the verdict. We are not inclined, however, to disturb the verdict on this ground; and, finding no error in the proceedings of the trial court, its Judgment is affirmed.
Affirmed.