Opinion
April 18, 1912. Rehearing Denied May 15, 1912.
Appeal from District Court, El Paso County; A. M. Walthall, Judge.
Action by G. W. Crippen against the Galveston, Harrisburg San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Beall, Kemp Parker, of El Paso, and Baker, Botts, Parker Garwood, of Houston, for appellant.
John L. Dyer and C. W. Croom, both of El Paso, for appellee.
Suit by Crippen against appellant to recover damages for alleged injuries to a race horse shipped from Pensacola, Fla., to El Paso, Tex, the injuries to said animal being alleged to have been caused by the negligent operation and switching of the car containing the same in the yards of appellant at El Paso. Upon trial before a jury, verdict was rendered in favor of appellee for the sum of $4,850, in accordance with which judgment was rendered by the court.
Defendant's general demurrer to the plaintiff's petition was properly overruled. It is well settled that a general averment of negligence is sufficient as against a general demurrer. The averment of negligence contained in the petition would perhaps be insufficient as against special exceptions, but it was certainly sufficient as against the general demurrer.
Subdivision "a" of the second assignment is overruled because the producing cause was alleged in the petition, and subdivision "b" is overruled because the statement and argument subjoined do not disclose what the contract of shipment was, nor the terms and conditions under which the horse was accepted for transportation, nor are we referred to any portion of the record to substantiate this contention. Subdivision "b" is overruled for the further reason stated hereinafter in passing upon the correctness of the court's action in refusing a special charge requested by appellant.
In the absence of a market value for the injured animal at El Paso, the measure of plaintiff's damage was the difference between the actual value of the animal in the condition in which she was delivered to plaintiff on her arrival, and the actual value which she would have had if she had been transported with ordinary care, and the court did not err in applying this measure. We have carefully reviewed the testimony in the case, and it is clearly apparent from the testimony of all the witnesses that there was no market value in El Paso for animals of the breed, class, and qualities possessed by the injured animal.
Error is assigned to the refusal of the court to give a special instruction requested by the defendant, as follows: "If they believe from the evidence that the plaintiff, at the time he signed the contract of shipment with the Louisville Nashville Railway Company, had the option of shipping said horses at a higher rate of freight, under the tariff rate filed in the office of said railway company, or to secure the lower reduced rate, and that for the purpose of securing the lower rate, which entitled the owner to transport with household goods an animal to place of destination, the plaintiff, by fraudulent representation that he was an emigrant, availed himself of the emigrant agreed rate, and that by the terms and conditions of the contract in writing, signed by him, the value of each of the horses was agreed to be $100, which sum was agreed to be the just and reasonable value of said horses upon which the contract of shipment and freight rate to be charged therefor was to be based, and if you believe from the evidence that the carriers, in accepting said horses and freight for shipment at the rate of freight charged, were not advised that they were race horses, or had any extraordinary value, and were being shipped to El Paso for racing purposes, but received said horses at the low rate agreed upon, believing that said plaintiff was an emigrant, and entitled to said rate, and if you further believe that said plaintiff claimed to be an emigrant, having household goods and five horses, which, under said classification, were allowed to be shipped as an `emigrant outfit,' and that he so did, for the fraudulent purpose of securing a reduced rate for the transportation of his said horses under the contract of shipment aforesaid, then your verdict should be for the defendant, as to the value of said horse agreed upon in said contract."
Our courts have uniformly declined to follow the rule laid down in Hart v. Railway Co., 112 U.S. 331, 5 Sup.Ct. 151, 28 L.Ed. 717, and in the absence of misrepresentation or concealment of value, and where the carrier has opportunity to see and know the nature and value of the freight to be carried, it cannot by contract relieve itself from liability for full value, if lost or damaged through its negligence. Railway Co. v. Maddox, 75 Tex. 300, 12 S.W. 815; Railway Co. v. D'Arcais, 27 Tex. Civ. App. 57, 64 S.W. 813. Indeed, some of the Texas authorities lay down the broad rule, without any limitations, that when a carrier receives freight, any contract which relieves from liability for its full value, if lost through the carrier's negligence, is unreasonable and void. Railway Co. v. Ball, 80 Tex. 606, 16 S.W. 441; Railway Co. v. Greathouse, 82 Tex. 110, 17 S.W. 834; Railway Co. v. Williams, 31 S.W. 556; Railway Co. v. Smythe, 55 Tex. Civ. App. 557, 119 S.W. 895; Railway Co. v. Harriman, 128 S.W. 934. In the instant case there is no evidence whatever of any fraudulent representations that the shipper was an emigrant, or any misrepresentation or concealment in regard to values; nor is there any evidence that the animal was shipped at a reduced rate, except the recitation to that effect in the contract; and as to this matter, defendant's witness Webb, in testifying in regard to rates and classifications, unequivocally stated that the Crippen shipment was not at a reduced rate. For the reasons indicated, the requested charge was properly refused.
The sixth and seventh assignments of error are submitted as propositions. As such they cannot be considered, because they do not disclose the point. Rule 30 (142 S.W. xiii) for the Courts of Civil Appeals.
There was no error in permitting the witness Potter to testify that in estimating the value of the horse he based his estimate upon the races she had won and class of horses she had raced with. As stated above, the proof showed that animals of the kind and class of the injured one had no market value in El Paso; that she was a race horse, and in determining her actual value these were matters to be properly considered. Railway Co. v. Dunman, 16 S.W. 421; Railway Co. v. Davis, 1 White W. Civ.Cas.Ct.App. § 147; Railway Co. v. Graddy, 139 Ky. 465, 109 S.W. 881, 139 Am.St.Rep. 499. Miller v. Smith, 112 Mass. 475.
The ninth assignment of error, complaining of the amount of the verdict as being excessive and unsupported by the evidence, is overruled. The verdict is supported by the testimony, and we cannot revise the finding of the jury in this respect.
Affirmed.