
    Chicago, Rock Island & Pacific Railway Company et al. v. Clements & Carroll.
    Decided January 6, 1909.
    1. —Interstate Commerce—Jurisdiction of State Court—Shipment of Live Stock.
    
      When a cause of action against a railroad company for damages to an interstate shipment of live stock is based upon a breach of defendant’s common law or contractual duty, which is not regulated, trenched upon nor in any manner affected by the Acts of Congress regulating interstate commerce, the State courts have jurisdiction to try the same.
    2. —Trial Amendment—Continuance.
    Pending the trial of suit against several railroad companies for damages to a shipment of live stock, plaintiffs filed a trial amendment alleging the intrinsic value of the animals at their destination, in addition to the market value theretofore alleged, and prayed in the alternative for such intrinsic value; the defendants thereupon moved for a continuance on the ground that they were not prepared to meet the change in plaintiffs’ pleadings; the court overruled the motion. Held, because it was not shown that any evidence was introduced by plaintiffs to prove intrinsic value; and because if there was in fact any difference between the intrinsic and market value of the stock the trial was taking place in the very town which was the destination of the stock, and a continuance was not necessary to enable the defendants to obtain evidence to meet said issue; and because it was not shown in the motion for new; trial that defendants were prejudiced by the action of the court, an assignment of error complaining of such action must be overruled.
    3. —Master and Servant—Proof of Relationship.
    While the relationship of master and servant can not be proved by the bare statement to that effect by the servant, still the admission of a statement by a person at a railroad station that he was the company’s yardmaster at that station could not be prejudicial to the company when supplemented with evidence that said person was engaged at that place in directing the management and movement of the company’s trains, and that the authority thus exercised was such as is usually given a yardmaster.
    4. —Carrier of Live Stock—Failure to Bed Cars—Negligence.
    Testimony that it was usual and customary for railroad companies to bed cars in which cattle were shipped is admissible as tending to prove negligence il failing to do so for the shipment of horses; and in the absence of evidence ti the contrary it will be presumed that the duty to so prepare the ears devolved on the railroad company and not on the shipper.
    Appeal from the District Court of El Paso County. Tried below bebre Hon. J. M. Goggin.
    
      Hawkins & Franklin, for appellants.
    That the trial court did not have jurisdiction of the cause: Gulf, C. & S. F. Ry. Co. v. Moore, 83 S. W., 362; Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S., 426; Claflin v. Houseman, 93 U. S., 135; Swift v. R. R., 58 Fed., 858; Sunderland Iros. v. C. R. I. & P. Ry. Co., 158 Fed., 877; Sheldon v. Wabash Ry., 15 Fed., 785; Van Patten v. Ry. Co., 74 Fed., 981; Interstate Commece Act, secs. 9, 20, 22.
    Agency can not be proved by the declarations of the agent made out of court and the court erred in allowing the witness Carroll to testify that som party at Tueumeari had stated to him that he was the yardmaster olappellants.' Latham v. Pledger, 11 Texas, 445; St. Paul F. & M. Ins. Co. v. McGregor, 63 Texas, 403; Aetna L. Ins. Co. v. Hanna, 81 Texas, 91; Lyons v. Texas & P. Ry. Co., 36 S. W., 1007; Owens v. New York Co., 32 S. W., 189.
    W. M. Picolas, for appellees.
   NEILL, Asociate Justice.

We adopt the statement made by the trial court iitf.ts charge of the nature of this suit, which is as follows:

“This is a ait by plaintiffs, W. B. Clements and L. V. Cárroll, composing the fin of W. B. Clements & Company, against the Chicago, Rock Island & Pacific Railway Company, the Chicago, Rock Island & Gulf Railway Company, the Chicago, Rock Island & El Paso Railway Company, the El Paso & Rock Island Railway Company, the El Paso & Northeastern Railway Company, and the El Paso & Northeastern Railroad Company, for damages alleged to have been sustained to a certain shipment of stock from Kansas City, Missouri, to El Paso, Texas, over said defendant lines.

“Plaintiffs allege that on or about the 2nd day of November, 1907, they tendered to the Chicago, Rock Island & Pacific Railway Company twenty-one head of stock, consisting of sixteen horses and five mules, for shipment over the above named lines to El JPaso, Texas; that said shipment was accepted by the defendants and each of them, but was not transported over the said lines, or any of them, with reasonable despatch, but' was unreasonably and negligently delayed en route, not reaching El Paso until about eleven o’clock a. m., on November 9; that the defendants failed to bed properly the cars in which said animals were transported, and said shipment on each and all of said roads was greatl/ jarred and jerked and very roughly handled; that the failure proper^ to bed said cars and said delay in transportation, as well as said roufh handling, was negligence on the part of each and all of said defendant, and resulted in serious injury to said shipment, greatly reducing he value of the same at point of destination; and plaintiffs pray that tiey recover the difference between the market value of said animals in the condition they should have arrived in but for such alleged negligmce on the part of the defendant companies, and the condition they dii arrive in; and if they are not entitled to recover the difference in narket value, that then they recover the difference between the market value in the condition they should have arrived in and the intrinsic vine of said animals in the condition they were in upon arrival.

“The defendants answer by a general denial, and specially dny any negligence on the part of said roads or either of them, and say hat said shipment, as a matter of fact, was transported with reasonabl edispatch without any rough handling, and without any failure on the: part to bed said cars, alleging that they were not required to bed ¡une; and defendants say that the Chicago, Rock Island & Pacific Raivay Company owned and operated, and owns' and operates, said linejf railroad extending from Kansas City, Missouri, to Texhoma, on thedexas line; that the Chicago, Rock Island & Gulf Railway Compan; owns, and owned and operated, said line extending from Texhoma to a cation called Bravo, on the New Mexico line; that the Chicago, Rocklsland & El Paso Railway Company owned, and owns and operates,said line extending from Bravo to a place called Tucumcari, in tb Territory of New Mexico; that the El Paso & Rock Island Railway ompany operated, and operates, said line extending from Tucumcari 4 a place called Carrizozo; and that the El Paso & Northeastern Rflway Company operated, and operates, said line extending from ftrrizozo to the northern boundary line of the State of Texas and the ierritory of New Mexico; and that the El Paso So Northeastern Eailroad Company operates said line from the last named point to the city of El Paso; and defendants deny that any partnership" existed between any of said defendants at the time of said shipment, except between the El Paso So Bock Island Eailway Company, the El Paso So Northeastern Eailway Company, and the El Paso So Northeastern Eailroad Company, extending from said town of Tucumcari to the city of El Paso.”

The trial resulted in a judgment in favor of the plaintiffs for $1500, which was apportioned amongst the different defendants according to the various sums the jury, in their verdict, found them severally liable. They have all appealed from the judgment.

Conclusions of fact.—The evidence is reasonably sufficient to show that each defendant was guilty of such acts of negligence as were alleged against it and submitted by the court in its charge to the jury; and that by reason of such negligence plaintiffs were damaged in the sum of $1500, which damage was caused by the several defendants to the amount respectively assessed by the verdict against each of them.

Conclusions of law.—1. The contention of appellants, that the court below was without jurisdiction to try the case because exclusive jurisdiction thereof was, under the Act of Congress entitled An Act to regulate commerce, as amended by the Act of June 29, 1906, known as the Hepburn Amendment, given the Interstate Commerce Commission and the Circuit and District Courts of the United States, can not be sustained either upon principle or authority. The cause of action alleged and proved did not arise from and is not based upon any infraction of the Act in question nor its amendment; but from a breach of defendants’ common law or contractual duty which) though pertaining to interstate commerce, is not regulated, trenched upon or in any way affected by the Act of Congress. Hence the cases of Gulf, C. & S. F. Ry. v. Moore, 98 Texas, 302; Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S., 425, 51 L. Ed., 553; Texas & P. Ry. Co. v. Cisco Oil Mill, 204 U. S., 449, 51 L. Ed., 562; Texas & P. Ry. Co. v. Mugg, 202 U. S., 242, 50 L. Ed., 1011; Claflin v. Houseman, 93 U. S., 130, 23 L. Ed., 833; Swift v. Phila. R. R., 58 Fed. Rep., 858; Sunderland v. Chicago, R. I. & P. Ry. Co., 158 Fed. Rep., 877; Sheldon v. Wabash R. Co., 105 Fed. Rep., 785; Van Patten v. Chicago, M. & St. P. R. Co., 74 Fed. Rep., 981, relied upon by appellant, have no application to the question raised by the assignment, unless it be to show that the matters here involved are such as may be taken cognizance of by our State courts, as is especially illustrated by the Supreme Court’s remanding the Moore case to be tried upon an issue not affected by the Interstate Commerce Act. See Galveston, H. & S. A. Ry. Co. v. Piper Company, decided by this court on December 9, 1908 (52 Texas Civ. App., 568), for an opinion, in a case involving the same question, which upholds the jurisdiction of the State courts.

2. In plaintiffs’ original petition the measure of damages alleged was the difference between the market value of the animals in the condition they should have arrived at El Paso, Texas, but for the negligence of defendants, and the condition they were in when they did arrive there. During the progress of the trial plaintiffs filed a trial amendment, alleging that, if the animals had no market value at El Paso in their damaged condition, they had there an average intrinsic value of $150 each, and, in the alternative, asked- judgment for the difference between their market value in the condition they should have arrived but for defendants’ negligence and their intrinsic value at that place in their damaged condition. Whereupon defendants moved the court to allow them to withdraw their announcement of ready for trial and to continue the case, upon the ground that they had made no preparation to meet the change in plaintiff’s pleadings made by such trial amendment; and could not, therefore, continue the trial of the cause. The court overruled the motion, and its action in doing so is assigned as error.

It does not appear from the statement in appellants’ brief that any testimony was introduced by the plaintiffs in support of the issue presented by the trial amendment. If there was none (which we may assume from the absence of its statement in appellants’ brief, without examining the statement of facts), defendants were not prejudiced by the ruling of the court. If, however, it should appear that testimony was introduced in support of such issue, we would not be prepared to say from the record as presented to us, that the ruling complained of should cause a reversal of the judgment. While the term “market value” is not synonymous with “intrinsic value”—the one meaning the actual ptrice in which the commodity is commonly sold; the other, its true, inherent and essential value, independent of accident, place or person, but is the same everywhere and to every one—yet the latter is so generally a factor which enters into the determination of the former, that it may be said that a thing which has no intrinsic value is generally without market value. This, as to some commodities, is so frequently the ease that at a given time and place its market and intrinsic value are the same, or so nearly that the one is scarcely distinguishable from the other. If, then, there was any difference in the intrinsic and the market value of the animals in their damaged condition when they reached El Paso, where the case was tried, it would seem that if the defendants were prepared to meet the issue as to their market value, they would, if not from such preparation ready to meet the issue raised by the trial amendment, have been able to prepare their case on such issue in a short time without having to resort to a continuance for that purpose.

Besides, if the plaintiffs introduced any evidence in support of their amendment of intrinsic value, the defendants should have, at least, shown in their motion for a new trial a probability of procuring testimony on another trial of the case which would in some way tend to rebut such evidence. Neither the motion for continuance nor for a new trial tends to show the existence of such rebutting testimony. Therefore, it not appearing from anything in the record that a reversal of the judgment and remanding the case for another trial would be of any avail to the defendants, the assignment of error should not, in our opinion, be sustained.

3. It does not appear from the statement under the sixth assignment of error in appellants’ brief, nor from the bill of exceptions upon which the assignment is predicated, what was said in the conversation between the witness Carroll and the person at Tucumcari who stated to the witness that he was defendants’ yardmaster. Unless something was said by that person which would, as coming from their agent, in some way prejudicially affect defendants, or some of them, it can not be perceived how the mere statement by the person that he was the yardmaster of defendants could injure them. If, however, it was a matter of any moment to plaintiffs to prove that the person occupied the relation to defendants of yardmaster at that station, though such relation could not be shown by his bare statement, when it was proven that he was engaged at that place in directing the management and movement of defendants’ trains, that his directions to such ends were obeyed by their servants who were employed in operating them, and that the authority he thus exercised was such as is usually given a yardmaster, we do not think that his statement to the witness that he occupied such position could have in any way prejudiced the defendants, even if such statement, made while he was discharging the duties of such position and his orders being obeyed by the other servants of defendants, was not res gestae.

4. As it does not appear from the record that the special exceptions to plaintiffs’ petition, which the ninth and tenth assignments complain of as being overruled, were called to the attention of and ruled upon by the court, such assignments will not be considered.

5. The same reason for bedding cars for the transportation of cattle obtains when they are used for carrying horses or mules. Therefore, it having been alleged by plaintiffs that the animals were negligently loaded in cars which were not bedded, and as the evidence showed that the cars in which they were loaded were not bedded between Kansas City and Dalhart, evidence that it was usual and customary for railroads to bed cars in which cattle are shipped was admissible as tending to prove the alleged negligence. As the contract under which the animals were shipped, if in writing, does not appear in the record, and as it does not otherwise appear that the contract provided that the plaintiffs should bed the cars, it can not be held, as is urged by appellants in their proposition under the eleventh assignment, that such testimony was immaterial and irrelevant.

6. Our conclusions of fact dispose of the twelfth assignment adversely to appellants.

There is no error in the judgment, and it is affirmed.

Affirmed.

Writ of error refused.  