Edloff sued defendants Atchison, Topeka Santa Fe Railroad Company and Gulf, Colorado Santa Fe Railroad Company in the District Court of Dallas County, Texas, for damages alleged to have been done to a carload of furniture shipped from Chicago, Illinois, to Dallas, Texas.
The petition alleged: (1) That defendant companies were, at the time of the shipment, partners in the transportation of goods, wares and merchandise and other personal property, as common carriers, and constituted, with other lines owned by the company first mentioned, what was known as the "Santa Fe Route;" that if they were not partners, then the first company was at said date and is now the owner of all the capital stock of the latter and the practical owner and controller of same, and they were and are practically one line; that said "Santa Fe Route" — that is, the said Atchison, Topeka Santa Fe Railroad Company, received said furniture at Chicago in good order and condition, to be transported to Dallas, Texas, and there delivered to plaintiff for valuable consideration, according to the terms of the bill of lading attached to the petition, and that in receiving the same, said company acted both for itself and the Gulf, Colorado Santa Fe Railroad Company, whereby both companies as common carriers were obligated and bound to transport the furniture to Dallas and deliver the same to plaintiff in like good order and condition as when received; that said goods when they arrived at Dallas and were delivered to plaintiff were in a badly damaged condition, setting out specifically the nature of the damage. (2) That if plaintiff is mistaken in the foregoing allegations of partnership, etc., then the petition declares that at said time said companies were common carriers of freight, operating and owning connecting lines of railways from Chicago, Illinois, to Dallas, Texas; that said Atchison, Topeka Santa Fe Railroad Company received the furniture in good order and condition, at Chicago, to be transported and delivered to plaintiff at Dallas in like order, and that the Gulf, Colorado Santa Fe Railroad Company received same from its co-defendant at Purcell, Indian Territory, the point of connection of their lines, and was bound and agreed to transport same over its line and deliver same in like good order to plaintiff at Dallas; that both of said lines failed to transport same with diligence and care, but that said furniture *Page 456 was damaged, injured and lost while upon both of said lines of railway.
In addition to the above counts or subdivisions of the petition, the amount of plaintiff's damages was alleged, that he is unable to state how much damage accrued on each line, and that, although he has demanded settlement of each company, both have refused to pay any part of said damage, and he prayed for judgment against both defendants and for general relief.
The Atchison, Topeka Santa Fe Railroad filed its sworn plea of privilege, claiming the right to be sued in El Paso County, setting up various facts, but said plea did not contain a denial of the existence of the partnership alleged in the petition. The trial court, after hearing the evidence, overruled said plea, and its action thereon, having been affirmed by the Court of Civil Appeals, is assigned as error here. We are of opinion that no other judgment could have been rendered under the pleadings, for the fact of partnership, being alleged in the petition and not denied in the answer, must have been assumed by the trial court to be true, and therefore the Atchison, Topeka Santa Fe would be liable as partner for whatever damage may have been properly adjudged against the Gulf, Colorado Santa Fe. Rev. Stats., art. 1263; I. G. N. Ry. Co. v. Tisdale, 74 Tex. 8. For this reason we do not deem it necessary to discuss the question as to the sufficiency of evidence introduced on this plea to establish the fact of partnership.
The answer of the Atchison, Topeka Santa Fe Railroad Company consisted of (1) a general denial; (2) that the goods were shipped under the contract contained in the bill of lading, which stipulated that the liability of defendant should be limited to its own line, and that for all damage to the goods in transit the remedy should be solely against the carrier in whose custody the goods might be at the time of the injury, and that it delivered the goods in good condition to the Gulf, Colorado Santa Fe Railroad Company at Purcell, the terminal point of its line. The answer contained no specific denial of the existence of a partnership, and was not sworn to.
The answer of the Gulf, Colorado Santa Fe Railroad Company consisted (1) of a sworn denial of the existence of the partnership alleged in plaintiff's petition, and an allegation that its line was entirely distinct and separate from that of the other lines in the Santa Fe system, and that this shipment was made by this defendant on its own account only, as a connecting carrier, its only obligation being to protect the guaranteed rate of freight, wherefore it claimed that it was neither a necessary nor proper party to the suit against the Atchison, Topeka Santa Fe Railway Company; (2) a general denial; (3) that it received the car of furniture from the Atchison, Topeka Santa Fe at Purcell, Indian Territory, the northern terminal of its road; that it transported the same carefully and without any negligence upon its part, from Purcell to Dallas, and there delivered it to plaintiff in the same condition as it was when it was received at Purcell.
On the trial of the cause before the court without a jury, the court *Page 457 found, among other facts not necessary to state, that the car of furniture was properly loaded and in good order and condition; was delivered to the Atchison, Topeka Santa Fe at Chicago to be transported to Dallas, and there delivered to plaintiff; that when said car arrived at Dallas, the furniture was in a broken and damaged condition; that such damage occurred during the transit from Chicago to Dallas, partly upon the lines of each of said companies, the total damage amounting to $2254, for which it rendered judgment against both defendants, which judgment having been affirmed by the Court of Civil Appeals, each of the defendants applied to and obtained a writ of error from this court. The principal ground upon which the writ of error was granted was that assigned by the Gulf, Colorado Santa Fe Railroad Company, to the effect that the "court erred in rendering any judgment against it, for the reason that the evidence disclosed conclusively that the shipment was properly handled and cared for on appellant's line, that it was received in a damaged condition from the initial carrier and delivered in substantially the same condition at Dallas."
The evidence does not disclose how the car of furniture was handled on the route from Chicago to Purcell.
A.P. Griffith, the conductor of the Gulf, Colorado Santa Fe Railroad, testified that he, as such conductor, hauled the car of furniture from Purcell to Gainesville, Texas; that when he first saw the car at Purcell the north door was open, having no seal on it, and he "saw inside the car that the furniture and fixtures were in bad condition; it looked as if the car had been badly loaded or roughly handled or had been broken into and pilfered," that he caused the door to be nailed up and sealed and that in hauling it from Purcell to Gainesville, it was properly handled.
The other two conductors of this defendant, who hauled the car on different portions of the route from Gainesville to Dallas, testified that the car was in good condition and was properly handled during the time it was in their possession. Various witnesses, including plaintiff and the Gulf, Colorado Santa Fe Railway Company's agent at Dallas, testified to the bad condition of the car and the furniture on its arrival at that point. The undisputed testimony showed that the car was in good condition when it left Chicago, and the testimony of the mechanic who loaded the same, which is not disputed by any witness, was to the effect that he was an expert in loading furniture and that he superintended the loading of this car and that the furniture was "carefully loaded, well braced and supported and packed with excelsior and paper. The men engaged in said work were of long experience and used all the care and diligence possible in loading said car."
One witness, in discussing the condition of the car and furniture at the time it reached Dallas, said: "It was not sealed, but it was nailed up. The doors had been broken off and the sides of the car were shivered up just above the doors and a cross piece was nailed outside the door to keep the door closed, I reckon; it was nailed up and down. * * * *Page 458 After it was opened, I saw a lot of stuff broken up in there and it was all lying about in a loose condition in the car. * * * It was mashed up so that I could not tell you how it was; broken up badly, a good deal of it in splinters. I think it was a car that was turned over, from the way it was shivered up between the corner and the cross piece. I think it was caused by a wreck in the furniture, that shiver was, the furniture jabbing through it. That was the south end of the car."
The plaintiff testified: "I have handled furniture a good long time. Furniture in that condition in a shipment of that kind could not be transported any distance much and not receive additional damage, not a car like that; I don't think it could have been transported three miles or one block further in a car like that without receiving additional damage."
There is no evidence in the record tending to show that the Gulf, Colorado Santa Fe Railroad Company, when it received the car in the damaged condition at Purcell, made any effort to repack the furniture or "brace" it in any manner so as to prevent damage by transportation, the sole precaution taken being, as above stated by the conductor, to nail up the door. We are unable to say, in view of the above testimony, that the trial court was not authorized to find that the furniture was damaged in part by the haul over the route from Purcell to Dallas through the negligence of the Gulf, Colorado Santa Fe. Plaintiff's testimony above quoted, to the effect that the car could not have been hauled without damaging the furniture, was not contradicted, and even if it had been, it was a question of fact of which this court has no jurisdiction.
There is no evidence in the record tending to show the amount of damage done to the furniture before it reached and after it left Purcell.
When the plaintiff showed the goods to have been in a damaged condition when tendered to him by the Gulf, Colorado Santa Fe Railroad Company at Dallas, he made a prima facie case against said company for the full amount of the damage. In order to escape liability, in whole or in part, it devolved upon said company to show that such damage as it disputed its liability for occurred on another line. Simply showing, as it has done in this case, that the goods were damaged to some extent, without attempting to show how much, when delivered to it, does not defeat or in any wise meet plaintiff's prima facie case.
We are therefore of the opinion that plaintiff was entitled, under this state of the evidence, to a judgment against the Gulf, Colorado Santa Fe Railroad Company for the full amount recovered. We are also of the opinion that since there was no sufficient plea on the part of the Atchison, Topeka Santa Fe Railroad Company denying the partnership alleged in the petition to have existed between the two companies, it was so liable for the full amount of the damage assessed against the Gulf, Colorado Santa Fe, and that therefore the joint judgment against the two was properly rendered. Railway v. Tisdale, 74 Tex. 8; Baylor Co. v. Craig, 69 Tex. 330 [69 Tex. 330]. It may be that the Atchison, Topeka Santa Fe, under the evidence, was properly held liable for the full amount of the damage upon the further ground of having received the goods properly *Page 459 loaded, "braced" and packed at Chicago, and having turned them over to its connecting carrier at Purcell, damaged, loose and "unbraced," in an injured car, to be hauled the balance of the route, whereby they would almost necessarily be greatly damaged, the furniture consisting of tables, bar counters, mirrors, screens, etc., and especially so, since it has not shown the extent of the damage done on its line. We do not deem it necessary, however, to express an opinion upon this question. Railway v. Daggett, 87 Tex. 322.
Since the Atchison, Topeka Santa Fe is liable on the ground of partnership under the principles above discussed, the Gulf, Colorado Santa Fe cannot object to the former being joined as defendant in the judgment with it, though, as between the Gulf, Colorado Santa Fe and the other parties to the suit, no such partnership was shown. Baylor Co. v. Craig, 69 Tex. 330.
The judgment is affirmed.
Affirmed.
Opinion delivered February 17, 1896.
ON MOTION FOR REHEARING.