
    WICHITA VALLEY RY. CO. et al. v. BROWN et al.
    (No. 10931.)
    
    (Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1925.
    Rehearing Denied March 14, 1925.)
    1. Carriers &wkey;>2l9(5) — Initial carrier liable for damages from connecting carriers’ negligence, though no through bill of lading was issued.
    Allegations and proof that cattle were received for through shipment, fixes initial carrier’s liability for all damages from connecting carriers’, as well as its own, negligence, though no through bill of lading was issued.
    2. Partnership <S=»2I9(2) — Joint judgment against two railroads for entire damage to shipments, authorized without proof of alleged partnership, in absence of verified denial.
    In absence of verified plea, denying alleged partnership between defendant railways, as required by Vernon Sayles’ Ann. Civ. St. 1914, art. 1906, subd. 6, court could render judgment against both jointly for full damages to cattle shipped, without proof of partnership, though proof showed that cattle were not transported over line of one of them.
    3. Appeal and error <S=754(I) — Assignment of error that verdict was too indefinite to support judgment held not available, in absence of assignment that recitals in judgment were erroneous.
    Where recitals in judgment that counsel agreed that verdict was sufficiently definite to enable them to calculate shrinkage in weight of cattle shipped and depreciation in market value, because of defendant railways’ negligence, and made necessary calculations, were not challenged by assignments of error, contention that verdict was too indefinite to support judgment in aggregate amount so determined will be overruled.
    4. Carriers &wkey;>228(2)— Shippers held not required to negative making and breach of contract to give notice of claim for damages within certain time.
    In action against railroads for damages to shipments of cattle, it was not incumbent on plaintiffs to negative making and breach of contract to notify carriers of claim for damages within certain time; such agreement being defensive matter.
    Appeal from District Court, Clay County; Paul Donald. Judge.
    Action by C. L. Brown and others against the Wichita Valley Railway Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Taylor & Taylor, of Wichita Falls, H. M. Muse, of Henrietta, and J. L. Lackey, of Wichita Falls, for appellants.
    J. A. Templeton, of Fort Worth, for appel-lees.
    
      
      Writ of error dismissed for want of jurisdiction April 29, 1925.
    
   DUNKLIN, J.

The defendants Wichita Valley Railway Company and Fort Worth & Denver City Railway Company have appealed from a judgment in favor of C. L. Brown, T. B. Saunders, and Lee L. Russell, for the sum of $2,031.20, as damages for injuries alleged to have been sustained to four shipments of cattle of five carloads each, made by the plaintiffs from the town of Holiday, Archer county, Tex.; two of the shipments being made to Kansas City; Mo., one to St. Joseph, Mo., and one to the National Stockyards, Chicago, Ill.

According to the allegations of the petition, the Wichita Valley Railway Company, which was the initial carrier, owns and operates a line of railway extending from the town of Holiday to Wichita Falls, where it connects with the Fort Worth & Denver City Railway. It was not alleged that the cattle were transported over the line of the Fort Worth & Denver City Railway Company as one of the connecting carriers, but it was alleged that that company practically owns, dominates, and operates the Wichita Valley Railway Company’s lines, and that those two railways were operated as a single line by the two defendants as partners; said railway companies being agents each for the other, and that the two defendants undertook to transport the cattle over their own lines of railway and those of their connecting carriers to their respective points of destination.

Unusual delay and rough handling in transportation by the defendants and their connecting carriers were the charges made the basis of allegations of negligence resulting in the depreciation in the market value of the cattle when they reached their destination and for which damages were claimed. Those issues of negligence and consequent depreciation in market value were determined by the jury in plaintiffs’ favor.

While plaintiffs in their petition did not specifically allege that the Wichita Valley Railway Company was the initial carrier, and base their claim for a recovery upon that fact, yet the facts alleged and proven upon the trial do show unmistakably that that defendant was the initial carrier; and the allegations and proof further showing that the cattle were received for a through shipment to destination over the line of the initial carrier and its connecting lines, its liability was fixed by law, in the absence of the issuance of any bill of lading showing such undertaking. In fact, a through bill of lading is conclusively deemed to have been issued by the initial carrier, even though not in fact issued; and the initial carrier is liable for all damages resulting from the negligence of ithe connecting carriers, as well as for its own negligence. Burd v. San Antonio So. Ry. Co., 261 S. W. 1021, by the Commission of Appeals, Section B.

There was no denial by the defendants of partnership between the appellant railway companies, which was alleged in plaintiffs’ petition, as required by article 1906, subd. 6, Vernon’s Sayles’ Civ. Statutes 1914, and, in the absence of such a plea, the court was authorized to render a judgment against the Fort Worth & Denver City Railway Company jointly with the initial carrier, the Wichita Valley Railway Company, for the full amount of the damages sustained, without proof of such partnership, and even though the proof showed that the cattle were not transported Over the line of the Fort Worth & Denver City Railway Company. G. C. & S. F. Ry. Co. v. Edloff, 89 Tex. 454, 34 S. W. 414, 35 S. W. 144; Ry. Co. v. Tysdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545; Tex. Cent. Ry. Co. v. Pool & Smith, 52 Tex. Civ. App. 307, 114 S. W. 685.

The jury, in answer to special issues, found that there was a shrinkage in weight of the cattle and a depreciation of their market value by reason of the negligence found in the handling of them'. The findings of shrinkage were expressed in percentage — 2 per cent, for some shipments and 3 per cent, for others, and- the depreciation in market value was found to be 25 cents per hundredweight. There was no finding by the jury as to what amount of damages plaintiffs were entitled'to recover. However, the judgment contains this recital, after setting out in full the verdict of the jury:

“When this special verdict was rendered, and before the jury was discharged, plaintiff’s counsel requested the court to require the jury to complete their verdict by ascertaining and stating the amount of the damage which they found was sustained to each shipment as indicated by their verdict, and to state such amounts in dollars, and cents.
“Defendants’ counsel thereupon suggested that they would agree, and they did then and there agree, that the verdict as returned was sufficiently definite to enable counsel for plaintiff and defendants to make the necessary calculations from the undisputed evidence as to the amounts indicated by the findings of thé jury, and that such amounts should be made the basis of the judgment herein, which agreement having been assented to by the plaintiff’s counsel, the verdict was then accepted by the court, and the jury was discharged.
“The counsel for plaintiffs and defendants then made the necessary calculations and ascertained that the several amounts of damage calculated from the evidence, in accordance with the percentage found by the jury, were as follows, viz.: Answer to special issue No. 4: Excessive shrink, $225.62; depreciation, $295.62; total, $421.24. Answer to special issue No. 5: Excessive shrink $175.06; depreciation, $347.87; total, $523.18. Answer to special issue No. 6: Excessive shrink, $235.-59; depreciation, $302.05; total, $537.64 — which several items amount in the aggregate to the sum of $2,081.20, and, said calculations having been made and. agreed to be a correct interpretation of the verdict of the jury, same were so accepted by the court.”

The aggregate so stated was the amount of damages for which judgment was rendered, with interest thereon from the date of the judgment at the rate of 6 per cent, per an-num. The verity of those recitals in the judgment is not challenged by any assignment of error, and’ accordingly the contention of appellants, that the verdict of the jury was too indefinite to serve as a proper basis for the judgment, is overruled.

In the absence of a bill of lading in the statement of facts, it doés not appear that the plaintiffs contracted to give notice to any of the carriers of their claim for damages within 90 days from the respective dates on which the alleged injuries to the cattle occurred. It was not incumbent upon plaintiffs to negative the making of such a contract and the breach thereof as a condition for recovery. Such an agreement would be .a defensive matter, if defendants were entitled to any benefit, under it at all, and the burden would be upon them, at all events, to show it. ■

. For the reasons noted, all assignments of error are overruled, and the judgment is affirmed. . , 
      <@^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     