
    TEXAS & P. RY. CO. et al. v. YOUNGBLOOD.
    (Court of Civil Appeals of Texas.
    Nov. 5, 1910.)
    1. Process (§ 145) — Return — Identity of Defendant Served.
    Where a citation issued to several defendants and the sheriff’s return stated that it was served “by delivering to the within named defendant” a copy thereof, no inference could be indulged in as to the identity of the defendant served.
    [Ed. Note. — For other cases, see Process, Dec. Dig. § 145.]
    2. Carriers (§ 213) — Delay in Live Stock Shipment — Evidence.
    Where there was evidence from which the jury might have found that the necessity for stopping cattle by a carrier at a certain place for feed and rest, in obedience to statute, was brought about by the negligence of the shipper, the shipper could not escape the damages incident to the delay thereby caused.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 213.]
    Appeal from District Court, Midland County; 'S. J. Isaacks, Judge.
    Action by W. F. Youngblood against the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and the two last-named defendants appeal.
    Reversed and remanded.
    H. C. Hughes, for appellants. Caldwell & Whitaker, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes-
    
   SPEER, J.

This is an action by W. F. Youngblood to recover damages growing out of two shipments of cattle over the lines of the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, in which judgment was recovered for the sum of $2,693.56, apportioned amongst the defendants, and the two companies last named have appealed.

We sustain the contention that the court erred in not quashing the citation to these appellants, because of the defects in the returns thereon.

The following is a copy of the sheriff’s return: “Came to hand on the 11th day of March, 1909, at-o’clock-M., and executed in Grayson county, Texas, by delivering to the within-named defendant, in person, a true copy of this citation, together with the accompanying certified copy of the plaintiff’s petition, by delivering same to its agent, E. F. McCune, at the following times and places, to wit:

“I actually and necessarily traveled-miles in the service of this citation, in addition to any other mileage X may have traveled in the service of other process in the same case during the same trip. [Signed] H. S. Rick, Sheriff Grayson county, Texas. By G. E. Gibson, Deputy.”

No inference can be indulged as to the identity of the defendant served, since all of the defendants were named in the citation. Underhill v. Lockett, 20 Tex. 130; Stephenson v. Kellogg, 1 White & W. Civ. Gas. Ct. App. § 542.

Most of the other assignments are answered by the suggestion that the shipments appeared to be interstate shipments, of a character to fall within section 7 of the federal act of June 29, 1906, e. 3591, 34 Stat. 593 (Fed. Stat. Ann. Supp. 1907, p. 178 [U. S. Comp. St. Supp. 1909, p. 1163]), making each carrier liable to the owner for any loss, damage, or injury to his property caused by it or any other common carrier over whose line such property may pass.

The requested charge, summarily directing the jury that it was the duty of appellant Missouri, Kansas & Texas Railway Company to stop the cattle involved in the first shipment for feed, water, and rest at Parsons, ICan., was correctly refused, because there was evidence from which the jury might have found that the necessity for stopping the cattle at that place in obedience to statute, was brought about by the negligence of appellant. Oí course, in that event, appellant could not escape the damages incident to such delay. We do not consider the assignment with reference to the absence of testimony as to the state of the market, because such proof may be easily supplied on another trial.

For the error discussed, the judgment is reversed, and the cause remanded.  