The Ft. Worth & Rio Grande Railway Company has appealed from a judgment rendered against it in favor of C. B. Jones for damages to a shipment of 85 head of cattle from the station Boss to the stockyards in North Ft. Worth, the distance covered by such shipment being about 20 miles.
The cattle were consigned to .the Cassidy Southwestern Commission Company in North Ft. Worth, but the defendant company’s line did not extend to the point of destination, its nearest approach to that point was about 5 miles distant, where it connected with the Ft. Worth Belt Railway.
On September 5, 1917, the cattle were delivered to the defendant company at Boss, and were by it transported to the point of its connection with the Ft. Worth Belt Railway, at which point it delivered the cattle at about 10:10 a. m. of the same dhy the shipment was started from Boss. The proof showed that if the cattle had been unloaded by the Ft. Worth Belt Line at the stockyards in North Ft. Worth by noon of the same day, such delivery would have been in time for the sale of the cattle on the market of that day, but on account of congestion of traffic the cattle were not delivered to the consignee until late in the afternoon, too late for that day’s market, and were held over until the following day, when they were sold.
The proof further showed that a few days prior to the shipment an'order was placed with the defendant company for cars in which to load the cattle for about 4 a. m. of the morning of September 5th; and, according to the usual schedule of defendant’s train handling such shipments, the cattle would have been loaded and started from Boss about 4:40 of that morning, and would have reached the point of connection with the Ft. Worth Belt Railway about 2 hours later. The proof further showed that from 45 minutes to 1 hour and 15 minutes was the usual time required for the Ft. Worth Belt Rail'way Company, after receiving such a shipment from the defendant company, to transport and deliver it at the stockyards in North Ft. Worth. The cattle did not leave Boss until 8 o'clock on the morning of September 5th.
[1] In plaintiff’s petition it was alleged that the defendant contracted and agreed with the plaintiff to transport the cattle to North Ft. Worth, and that it owned and operated a line of railway extending from Boss to North Ft. Worth, but the testimony introduced was wholly insufficient to support that
It was alleged in plaintiff’s petition that the shipment was negligently delayed, and that by reason thereof plaintiff missed the market of September 5th, and on account of such delay the cattle lose weight and the market was lower on the following day, and damages were claimed based upon those facts; But the petition contained no allegation of a negligent delay by the Ft. Worth Belt Railway Company; the entire delay of the shipment to North Ft. Worth and plaintiff’s ldss resulting therefrom all being charged to the defendant.
[2] Error has been assigned to the action of the court in overruling defendant’s motion for a continuance, which was its first application, and was made for the purpose of obtaining the testimony of two witnesses residing in Ft. Worth. Interrogatories had been propounded to those witnesses in time to have procured their depositions, but their depositions were not taken on account of unavoidable contingencies in no manner due to negligence of the defendant company or of the notary in whose hands the interrogatories had been placed. The application for continuance was overruled by the court, and the ground upon which such ruling was made was specifically stated to be because the court was of the opinion that the testimony sought from those witnesses was immaterial to any issue in the case. The application was not overruled for lack of diligence on the part of the defendant to procure the testimony desired, nor do we think that there was any showing of such lack of diligence. The defendant expected to prove by those, witnesses that the causa of the delay on the part of the Ft. Worth Belt Railway Company in failing to deliver the cattle in North Ft. Worth sooner than they were delivered was due to a congestion of traffic, and not to any negligence on the part of that company; and other evidence introduced showed that on account of the drought prevailing at that time there was a heavy rush of cattle shipments from the drought-stricken area in West Texas. We are of the opinion that the testimony for which the defendant sought a continuance was material because it tended to controvert the contention by plaintiff that the negligent delay, if any, of the shipment in reaching the connection with the Ft. Worth Belt Line was the proximate cause of the loss complained of, and tended to controvert the further contention that there was a negligent delay of the, shipment of cattle by the Ft. Worth Belt Railway Company after it received them from the defendant, and that the court erred in overruling the application.
[3] In order to prove the weight of the cattle when sold and the prices realized therefor, the account sales and other records kept by the consignee were introduced in evidence. The proof showed that the person who weighed the cattle made a record of such weights, and the one who sold the cattle made a record of such sales, and all of those transactions appeared to have been in accordance with the usual method of transacting business in the stockyards at North Ft. Worth, and there was no error in admitting testimony of several witnesses predicated upon the correctness of such records; over the objection urged by the defendant that the same were hearsay. 10 R. C. L. pp. 909, 1171, 1185, 909.
[4] The cars for the shipment in question were ordered by C. M. Calloway for plaintiff by conversation over the telephone with the defendant’s train dispatcher. Plaintiff, Jones, was present at the time of the conversation, and immediately upon its conclusion Calloway repeated what the train dispatcher had said. Calloway was introduced as a witness to prove- the statements so made by the train dispatcher, and plaintiff was also permitted to testify as to what Calloway told him. The defendant objected to such testimony by the plaintiff on the ground that it was hearsay. Calloway could not remember all that the dispatcher told him, but testified that he correctly reported it to Jones, and Jones detailed the same in his testimony. Even though it should be said that the objection so made was tenable, such error in the ruling was harmless, in view of the fact that the only portion of the conversation which Calloway’ could not remember was the date for which the cars were ordered, and the defendant’s testimony was to the effect that they were ordered for September 5th, which is the date alleged in plaintiff’s petition. And that was substantially the entire testimony of both Calloway and the plaintiff with respect to what the train dispatcher said on that occasion.
[5-7] Since there was no testimony of any contract by the defendant to ship the cattle to North Ft. Worth, the court erred in submitting that issue to the jury and authorizing a recovery thereon. And in view of the fact that plaintiff did not allege any negligence on the part of the Ft. Worth Belt Railway Company in handling the cattle after it
For the reasons indicated, the judgment is reversed, and the cause is remanded.
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©=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes