
    CHICAGO, R. I. & G. RY. CO. et al. v. BELL.
    (No. 7965.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.
    Rehearing Denied May 30, 1914.)
    1. Carriers (§ 135) — Injury to Freight — Damages.
    Where goods, while in possession of a carrier, are entirely destroyed, the carrier is liable for the full value thereof, but, if they are not entirely destroyed, the owner is bound to receive them and recover the difference between their sound value and their value in their injured condition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603%-604y2; Dec. Dig. § 135.]
    2. Appeal and Error (§ 900) — Presumptions.
    Every reasonable presumption must be indulged in favor of the validity of the judgment appealed from.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3667-3669; Dec. Dig. § 900.]
    3. Carriers (§ 137% New, vol. 3, Key-No. Series) — Injury to Goods — Total Destruction — Award op Goods to Carrier.
    Where, in an action against a carrier, there was evidence of the total destruction of the goods sued for, the fact that the court awarded to the carrier title to the goods in their injured condition and rendered judgment for plaintiff for'their value did not necessarily imply a finding that the goods as injured were' of any special value.
    4. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    Where, in an action against a carrier for injury to goods, error was assigned in that plaintiff was not entitled to recover more than $400, which was the exact amount of the judgment, a proposition under the assignment that in all events the freight charges should have been deducted from the amount awarded was not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    
      5. Costs (§ 234) — Costs of Appeal — Modification op Judgment — Assignment of Ee-eok.
    Where reformation of a judgment on appeal was not the result of the sustaining of any assignment of error, but Resulted solely from a voluntary offer of appellee, all costs of appeal would be taxed to appellants.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. § 234.]
    Appeal from District Court, Young County; P. A. Martin, Judge.
    Action by W. C. Bell against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Reformed and affirmed.
    C. W. Johnson, of Graham, and Lassiter, Harrison & Rowland, of Ft. Worth, for appellants. Kay & Akin, of Graham, for appellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DUNKLIN, J.

W. C. Bell entered into a contract with R. M. Todd to sell to him certain pool room equipments consisting of billiard and pool tables, cues, -and other similar appliances. By the terms of the contract the goods were to be delivered to Todd at Graham, Tex. At the time the contract was made, the goods were at Brownsville, and Bell shipped them to Graham for the purpose of delivering them; the shipment being over the International & Great Northern Railway and the Chicago, Rock Island & Gulf Railway. Upon their arrival at Graham, Todd refused to accept them. They were then tendered to Bell, who likewise declined to accept them; his objection being based upon the contention that the goods had been so damaged in shipment as to be rendered value-, less. Bell then instituted this suit agáinst the two railway companies to recover the sum of $1,200, the alleged value of the goods, alleging that they were so negligently and carelessly handled by the two railway companies that their .value was wholly destroyed. The case was tried without the aid of a jury, and, from a judgment in favor of the plaintiff, the defendants have appealed.

The amount of the judgment so rendered was $400, and by its terms title to the property so shipped was vested in the two defendants. The evidence shows without controversy that Todd did refuse to accept the goods; that they were tendered to Bell, who likewise refused to accept them. By different assignments it is insisted that, as the evidence conclusively shows that the goods were not wholly destroyed, the correct measure of plaintiff’s damage was the difference between the value of the goods in the condition they did arrive at their destination and the value in the condition they would have arrived if they had been properly handled in transit from Brownsville to Graham, and that the court erroneously ignored that rule for measuring plaintiff’s damages, and rendered judgment for the full value of the goods.

It is well settled by the authorities that, where property is not wholly destroyed by the carrier in shipment, the owner cannot refuse to accept the goods and charge the carrier with their full value, but his measure of damages is the difference between the value of the goods in their injured condition and what would have been their value if they had not been so injured. G., C. & S. F. Ry. Co. v. Everett, 37 Tex. Civ. App. 167, 83 S. W. 257, and authorities there cited. The authorities are equally as well settled that, if the goods are wholly destroyed through the negligence of the carrier, their full value may be recovered. The trial judge did not file findings of fact and conclusions of law. Evidence introduced by the defendants tended strongly to show that the goods were of very little value even before they were shipped; that they were old and out of date and had been stored for a long time. But, according to testimony offered by the plaintiff, they were in good condition immediately prior to the shipment; that they then were worth $1,200; and that they were so damaged in transit from Brownsville to Graham as to be rendered wholly worthless. According to other testimony offered, it would, at all events, require a sum in excess of $400 to repair the damage done in shipment to the billiard and pool tables alone. .

Every reasonable presumption must be indulged in favor of the validity of the judgment rendered, and under this rule it must be presumed that the trial judge found that the goods would have been worth $400 if they had been properly handled by the defendants, and that their value was wholly destroyed through the negligence of the defendants, or that it would require that sum to repair the damage done to them.

The mere fact that the court awarded to the defendants title to the goods does not necessarily imply that he considered them of any special value, but rather that the court was of the opinion that the defendants should be given the benefit of the doubt. Accordingly the assignments presenting the question now under discussion must be overruled.

By another assignment, it is insisted that, even if the property had been totally destroyed, plaintiff was not entitled to recover more than $400, the price for which he had contracted to sell them to Todd. By propositions submitted under this assignment, it is insisted that at all events the freight charges should have been deducted from the $400 allowed by the court. This proposition is not germane to the assignment; the assignment being simply that plaintiff was not entitled to recover more than $400, which was the exact amount of the judgment. However, appellee has offered to remit the sum of $24, the amount of the freight charges for the shipment, and the remittitur will accordingly be entered.

All assignments oí error are overruled, and the judgment of the trial court is reduced to the principal sum of $376 instead of $400, as rendered, and, as so reformed, it is affirmed.

As this reformation of the judgment is not the result of sustaining any assignment of error, but follows solely from the voluntary offer of appellee, all costs of appeal are taxed against the appellants.

Reformed and affirmed.  