
    TEXAS & P. RY. CO. et al. v. WEST BROS.
    (No. 21—2623.)
    (Commission of Appeals of Texas, Section B.
    July 7, 1919.)
    Carriers <§==229(1) — Live Stock — Damage-Loss OX PlEXi.
    In an action against a carrier for damage to a shipment of live stock by delay, if the shipment was delayed by defendant, and on account of such delay plaintiffs’ cattle were damaged in appearance and lost in weight by reason of “loss of fill,” reasonably in contemplation, such loss of fill may properly be shown as affecting market value.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    On motion for rehearing. Rehearing denied.
    For former opinion, which affirms in part and reverses in part 159 S. W. 142, see 207 S. W. 918.
   SADLER, J.

The motion for rehearing should be overruled. It only complains of the opinion in relation to the discussion of “fill." The original opinion is not subject to the criticisms urged. The plaintiffs in error, by amended and supplemental applications, complain of the holding of the Court of Civil Appeals on this question. Writ of error was granted on these applications. The cause being reversed, we deemed it proper to discuss this question. ,

We think it is clear from what we said that it is a matter of proof as to whether plaintiff suffered any “loss of fill,” affecting the market value of his cattle, and chargeaMe to any failure on the part of defendant railway company. We do not think the language used by us in the original opinion.is capable of being construed into a holding that plaintiffs could contract so as to recover because the cattle had been fed twice en route and thereby failed to take on “extra fill.” Our holding the verbal contract void destroys such construction. However, if the shipment was delayed by the defendant company, and on account of such delay plaintiffs’ cattle were damaged in appearance and lost in weight by reason of “loss of fill” reasonably in contemplation, such “loss of fill” is proper to he shown, not that plaintiff recovers for “loss of fill” as such, but their damages in market value as affected by such loss.

PHILLIPS, O. J.

Overruled, as recommended by the Commission of Appeals. 
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