On November 25, 1912, Dickson Bros. shipped two car loads of mares, colts, and mules from Midland, Tex., to Durant, Okla., over the lines of the Texas Pacific Railway Company, the Missouri, Kansas Texas Railway Company of Texas, and the Missouri, Kansas Texas Railway Company, paying a freight charge of $140.30 per car. This suit originated in the justice court to recover an alleged overcharge of freight paid, and upon appeal to the county court was tried without a jury and judgment rendered in favor of plaintiffs for $142.10. In findings of fact filed by the trial court, it is found that the proper charge was $69.25 per car.
The first error assigned is that this finding is without any evidence to support it. The rate prescribed by the Interstate Commerce Commission of course controls, and it was the duty of the railway company to collect same.
The only direct evidence of this rate is contained in the testimony of Anderson, the agent of the Texas Pacific, and witness for plaintiffs, who testified that the rate prescribed by the Commission, effective April 23, 1912, was 62 1/2 cents per hundredweight for a 36-foot car, minimum weight 22,000 pounds, but W. L. Dickson testified that, since making the shipment out of which this suit arises, the Texas Pacific agent had quoted him a rate of $69.25 per 36-foot car. The quotation of this amount raised an issue as to the correct rate. The cause must be reversed for an error later noticed, and, in view of a retrial, we refrain from further comment upon the probative force of the evidence in the record.
Error is next assigned to the admission of the foregoing testimony of Dickson relative to the $69.25 rate. The quotation of rates is within the scope of a railway agent's authority, and as against the particular objection urged in the brief admissible for purpose of showing the correct rate.
Error is also assigned to admission of testimony by Dickson that about three years prior to the shipment in controversy he had secured a rate of $69.25 for a 36-foot car from Midland to Durant. The rate concerning which Anderson testified is shown to have become effective April 23, 1912. Evidence of the existence of a different rate prior to that date could have no proper probative force whatever. It was irrelevant and should have been excluded.
Appellee, in reply to the assignment, invokes the rule that, in a case tried before the court, the admission of incompetent evidence is ordinarily not ground for reversal, where there is competent evidence sufficient to support the judgment, since it will be presumed that the court based its findings and judgment upon the competent rather than the incompetent evidence. This rule, however, can have no application here, because the bill of exception expressly states that the evidence was considered by the court in arriving at his conclusion. Gaither v. Lindsey, 37 Tex. Civ. App. 149, 83 S.W. 225; Railway Co. v. Brashears,91 S.W. 594; Garrison v. Richards, 107 S.W. 861; Moore v. Kennedy,81 Tex. 144, 16 S.W. 740.
In view of the fact that the rate prescribed by the Interstate Commerce Commission absolutely controls the question, the objections urged in brief to the testimony of Blakeway do not seem to be well taken, but, in view of retrial, attention is called to the fact that it is clearly subject to the objection stated in the bill of exception, viz., that his shipment was not a through shipment and based upon a through rate but upon two local rates.
Reversed and remanded.