Mrs. S. P. Miller,, a feme sole, and D. B. Miller, executors of the will of S. G. Miller, deceased, sued the San Antonio & Aransas Pass Railway Company, the Texas Mexican Railway Company, the National Railroad Company of Mexico, and the Mexican International Railroad Company, alleging that in November, 1907, S. G. Miller ordered 13 cars, in which to ship cattle, from the San Antonio & Aransas Pass Railway Company; that the shipment was to be made on November 11, 1907, from Mathis, Tex., to Cacaria, in the state of Durango, republic of Mexico; that the agent of the railroad company named notified the shipper on the evening of November 11,1907, that the cars would not be ready on that day, but would be ready at 6 o’clock a. m. on November 12th; that the said railroad company, as well as the Texas Mexican Railway, knew that it was important that the cattle should reach Laredo promptly, so that they might be crossed into Mexico before 6 o’clock p. m. on November 12,1907; that said cars were not furnished on November 11th, and, although the cars were placed on the track at Mathis by 6 o’clock a. m. on November 12th, no engine was furnished to move the cars so they could be loaded until about 8:30 a. m., and, after the cattle were loaded, the cars did not reach Alice until about 9 o’clock p. m., although the distance was only 28 miles, and said delay caused many of the cattle to get down in the cars; that, after the cattle were delivered to the Texas Mexican Railway Company at Alice, they were held there so they did not reach Laredo until the morning of November 13th; that the cattle, after they reached Laredo and were delivered to the National Railroad Company of Mexico, were delayed on the way to Monterey; that ap-pellee sought to ascertain how long the cattle would be held at Laredo so that he could feed and water the same, but was told by agents of the companies that they would soon move and deprived appellee thereby of the opportunity of feeding and watering the cattle; that the cattle were delayed at Mon-terey, Mex., where they were delivered to the Mexican International Railroad Company for transportion to their destination. It was alleged that each of the three last-named roads handled the cattle roughly and greatly delayed them, and no opportunity was given to feed or water the cattle; that, by reason thereof, the cattle became thin and sick, some died while in transit, and about 185 of them died after they reached their destination. It was alleged that appellee was damaged in the sum of $6,000 by the San Antonio & Aransas Pass Railway Company, in the sum of $5,100 by the Texas Mexican Railway Company, in the sum of $1,950 by the National Railway Company of Mexico, and in the sum of $1,950 by the International Railway Company. The following verdict was returned: “We, the jury, find for the plaintiffs, viz: The S. A. & A. P. R. R. $2,434.00, Texas Mex. R. R. $2,434.00, Mexican National R. R. $1,216.00, Mex.-International R. R. $1,216.00. This includes interest to date.” Judgment was rendered in conformity with the verdict, and all parties have appealed, the San Antonio & Aransas Pass Railway ■Company having filed one record and the three other companies another, which is the record in this case, separate assignments having been filed in each record and separate briefs presented, necessitating separate opinions.
There was testimony to show that the value of the cattle killed while in transit and those that died immediately after reaching their destination were of greater value than the sums found by the jury. This suit was filed on July 1, 1909, and in February, 1910, each of these appellants filed an answer, and the cause was tried in that month resulting in a mistrial, and it was set down for a
[1] That refusal is the subject of complaint in the first and second assignments of error. We find that in the original answers filed by the three appellants, by whom this record was filed, were contained general demurrers, and special exceptions, general denials, and special answers to the effect that the persons in charge of the cattle did not request that the train be stopped in order to water and feed the cattle, although there were ample facilities offered for such feeding and watering, and that the cattle were prudently handled, and, if there was any delay, it was through the negligence of the shipper, that ample opportunity was afforded the shipper to feed and water the stock at Laredo and that he refused to do it, and that there was no unnecessary delay at Laredo or any other point. In the amended answer sought to be filed, there were numerous special exceptions to the petition, which were not included in the original answer, and special pleas setting up a failure upon the part of appellee to comply with requirements of the shipping contract, such as a failure to give notice in writing to the agent at point of destination, or to some general officer, or to the agent who signed the contract, of any losses, damages, or injuries sustained by appellee, and a failure to request in writing, as provided in the contract, the privilege and opportunity to water and feed the stock. It is clear, we think, that new issues were brought into the case by the last answer of appellants. The terms of the contract h¿d not been set up before, nor offered as a defense to the action and appellants could not quietly sit by for six months, and then after the case had been called for a trial and an announcement of ready made by the plaintiff and a codefendant seek to file a pleading that would not only interpolate new issues, but probably cause a continuance and seriously interfere with the business of the court.
[2] Matters relating to the amendment of pleadings during a trial must be largely intrusted to the discretion of the trial judge, and, unless there is a palpable abuse of such discretion, appellate courts will not interfere with rulings in connection therewith. Bailey v. Ely, 97 Tex. 425, 79 S. W. 299; Lipscomb v. Perry, 100 Tex. 122, 96 S. W. 1069. If the answer set up new issues, the court acted properly in not permitting it to be filed, and, if it did not set up new issues, appellants could prove their defenses under their original answers. So, on either hand, the assignments should not be sustained.
The third, fourth, fifth, sixth, seventh, and eighth assignments of error all refer to evidence as to the market value of cattle in Cacaría, Mex., if they had arrived there in proper condition. The first proposition under the six assignments of error is: “Where it does not appear that a witness had knowledge of the market value of the grade and class of cattle in question at the time and place in question, he is not qualified to testify as to market value.” That is a good abstract proposition, but its value to appellants is destroyed by the very testimony of the witness quoted by them in their statement under the proposition to this effect: “I know what the reasonable market value of these cattle would have been at Cacaría, Mex., if they had arrived there in the condition they should have arrived if they had gone through and been treated with ordinary care. The reasonable market value would have been about $50 round. There was a market for these cattle at Cacaría at that time.”
[3] The fact that one of the witnesses had been in Cacaría only twice before this cattle shipment would not destroy the effect of his testimony, for a witness might know the market value of cattle in a place that he had never visited. The witnesses testified that they knew the market value, and that formed a basis for their testimony as to such value. The two decisions cited were rendered in cases where there was no evidence of knowledge of the market value of live stock in certain places. Even if the evidence had been objectionable, it could not have injured appellants, because it was shown that 185 cattle died at Cacarla, and the evidence was un-controverted and unobjected to that the ones that were alive were worth $40 each, and, if the dead ones would have been worth that had they survived, the amount would have been greater than the total sum found by the jury with the interest included. As to the dead cattle, their value, had they been alive, was proved without objection, and it was more than the amount found by the jury, and appellants have no cause for complaint.
The second proposition is: “The issue as to whether or not the cattle were transported
[4] The executors of the estate had full authority to prosecute the suit for the community property, regardless of who might be entitled to a part of it, and, when -Mrs. Miller sued as executrix for damages belonging to the community estate, she was bound by the judgment not only as executrix, but as an individual. In the case of Fouche v. Harrison, 78 Ga. 359, 3 S. E. 330, it was contended that, when an executor sues as such, he commits himself to nothing in his personal and individual character, and the Supreme Court of Georgia held: “To this doctrine we are quite unable to assent. On the contrary, as we understand the law, an executor who files the bill in his representative capacity is a party thereto in his individual capacity also, if as an individual he has a manifest interest in the subject-matter of the bill. * * * Whoever heard that an executor has to make himself a party to his own bill in order to bind himself individually, or to give himself as creditor, legatee, or otherwise the fruits of the decree to the extent of his personal interest in the same? Is it possible to doubt that on the present bill it would be competent to decree the proper disposition to be made of the legacies, whether to pay them out on the claims of creditors, or to hold them free from such claims? And how could the executor as an individual either shun the burden or be shorn of the benefit of any rightful decree on that subject that might be rendered? Unless we are wholly unfit to be judges on such a plain question, we are at a loss to understand why it should be considered a question at all. That no direct authority upon it had been produced must be due alone to the fact that legal evolution had not progressed far enough to develop a needless precedent for a necessary conclusion.” The authorities cited by appellants have no applicability whatever to this case. Undoubtedly Mrs. Miller and her coexeeutor had the authority to take the place occupied by the deceased, S. G. Miller, in the suit, and could recover exactly what he could recover, and be bound by the judgment as he would have been bound. He sued for damages, let it be admitted to the community estate of himself and wife, and, when she entered the suit as the executrix of his will, she occupied his place for all purposes of the suit. The distribution of the community estate for which she was suing was a matter for future determination, and is a matter with which appellants have no concern. When they have settled the judgment herein obtained, they will have settled all they owe the community estate of Mrs. Miller and her deceased husband. No court in Texas has held otherwise.
[5] The purport of the charge, the refusal of which is complained of in the eleventh assignment of error, was given in the main charge and in special charges requested by appellants, and the court did not err in rejecting the special charge.
[6] The different railroads were designated in the verdict by initials and parts of words, instead of the full names, and the verdict is assailed on that ground as not affording a sufficient basis for a judgment against the different railway companies. The case of Railway v. Hathaway, 75 Tex. 557, 12 S. W. 999, is cited by appellants as sustaining their position, but it does not, although it is stated in the case of Dodd v. Gaines, 82 Tex. 429, 18 S. W. 618, that the Supreme Court in the first-named case had held that “a verdict against the ‘G. C. & S. E. Ry. Co.’ is not sufficient to support a judgment against the Gulf, Colorado & Sante Eg Railway Company.” Nothing of the kind was held in the case of Railway v. Hathaway, but the objection to tíie verdict was on an entirely different ground. It has been held by this court that verdicts similar in form to the one under consideration were sufficient. Railway v. Kingsbury, 25 S. W. 322; Railway v. Cardwell, 30 Tex. Civ. App. 164, 70 S. W. 103. In the last-named case, the verdict was against the “M. K. & T. Ry. Co.,” and this court said: “The verdict should be fairly and reasonably construed with reference to the parties before the court If this be done, there can be no doubt of the intention of the jury to find against appellant. The name sufficiently and unmistakably identifies appellant as the party to the proceeding against whom they found.” A writ of error to the Supreme Court in that case was applied for and denied.
[7] The undisputed testimony offered by appellees themselves shows that after the cattle reached Alice, the terminus of the line of the San Antonio & Aransas Pass Railway Company, the initial carrier, about one hour was consumed in rebilling the cattle over the line of the Texas Mexican Railway Company, which extends from Alice to Laredo. H. D. Miller, who was with the cattle, testified that “there was no delay at Alice, except to fix necessary papers from Alice t® Laredo. We made good time.” D. B. Miller
The only ground of negligence presented as to the Texas Mexican Railway Company and as to the National Railway Company of Mexico was delay, and the charge was not complained of by appellees, nor did they seek, through requested charges, to present any other phase of negligence. It follows that neither of the roads mentioned can be held liable for the failure to water and feed the cattle' at Laredo, even though it could be held that the shippers were prevented from feeding and watering the cattle by the constant announcements by the railway companies that the cattle would soon be moved. That phase of the case was not presented to the jury, and appellees acquiesced in the failure to present it. If the two railroads mentioned were not guilty of delay, there is' nothing to sustain the verdict, and it must be set aside.
The liability of none of the roads for failure to furnish facilities for watering and feeding the cattle was presented to the jury, except that of the terminal line, the Mexican International Railroad Company, and the matter of delay was also presented as to that company. In deference to the verdict, we feel justified in finding that there was evidence sustaining the charge of negligence against the Mexican International Railroad Company in failing to furnish facilities for watering and feeding the cattle, and also in delay which damaged them in the sum found by the jury against that road.
We affirm the judgment as to the International Railroad Company, but reverse it as to the Texas Mexican Railway Company and the National Railway Company of Mexico, and here render judgment in their favor.