
    MISSOURI, K. & T. RY. CO. OF TEXAS v. NEALE et al.
    (No. 1445.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 28, 1915.
    Rehearing Denied May 6, 1915.)
    1. Appeal and Error &wkey;>662 — Record — Geounds of Decision.
    An assignment of error, not supported hy the record, will'be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. &wkey; 662.]
    2. Carriers <&wkey;218 — Carriage op Live Stock —Actions—Time to Sue — New Cause op Action.
    In an action for delay in the shipment of mules, the petition alleged that defendant carrier negligently failed to transport the shipment to the destination in another state, but transported them to another point, and there held them in pens for five days or more beyond the reasonable time for transportation, that plaintiffs were compelled to divert the shipment, and that by the delay plaintiffs were damaged, because of the shrinkage and depreciated condition of the mules, to the amount of $900, and also because of extra feed bills of $50 and traveling expenses to look after the shipment amounting to $40. An amended petition declared on the same contract for delay in moving the mules after they were loaded, for unloading and detaining them in wet and muddy pens without proper food and shelter, for failure to keep them separated in reloading, and for allowing them to overeat upon reaching the point to which the shipment was diverted, whereby they became foundered and unfit for sale, and alleged damages at $950. The contract stipulated that suit should not be maintainable unless instituted within 91 days after the injury. The amended petition was filed after the expiration of such 91 days. Held, that no new cause of action was set up in the amended petition within the purview of the stipulation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dee. Dig. <&wkey;>218.]
    3. Carriers &wkey;>218 — Carriage of Live Stock —Actions—Claim oe Loss.
    The filing of a suit within 30 days was a compliance with a stipulation in a contract for the shipment of live stock, requiring the shipper to file a written claim of damages within 30 days after the injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;218.]
    Appeal from Fannin County Court; Rosser Thomas, Judge.
    Action by Jas. Neale and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head, and J. F. Holt, all of Sherman, and Chas. C. Huff, of Dallas, for appellant. S. F. Leslie and J. W. Gross, both of Bonham, for appellees.
   WILLSON, C. J.

In their original petition filed December 23, 1913, appellees Neale, Gibson, and Clifton declared on a contract made November 20, 1913, covering the transportation by appellant and connecting lines of railway of two car loads (45 head) of mules from Leonard, Tex., to Memphis, Tenn. Ap-pellees .alleged that appellant negligently failed and refused to transport the mules to Memphis and there deliver same to the consignee, their agent, as agreed upon, but instead transported the mules to MeAlester, Okl., and there held them in pens for “five days or more beyond .the usual and reasonable time required for transporting such character of shipment from the point of origin to the said point of destination.” They then alleged that after appellant “finally refused to transport said stock to their original destination, they were compelled to divert said shipment, and did so divert it, and consigned the same to plaintiffs’ order at East St. Louis, Mo.” They then alleged:

“That by reason of the unnecessary delay occasioned by the defendant’s breach of said contract for the transportation of said stock and the safe delivery at the original point of destination, plaintiffs sustained damage by the consequent shrinkage and loss of flesh and depreciated appearance and condition of said mules, amounting to $20 per head, a total of $900 for said 45 head, and the further loss by reason of said unnecessary delay occasioning extra feed hills, amounting to $50. That plaintiffs were compelled, by reason of the breach of contract by defendant, as aforesaid, to make a trip to St. Louis, Mo., to see after said stock and arrange for their sale on the market there, thereby occasioning an extra expense in railroad fare, hotel bills, and incidental expenses for said trip amounting to $40.”

The cause was tried on appellees’ first amended original petition filed April 30, 1914. In . this petition appellees declared on the same contract, and sought a recovery of damages of appellant for delay in moving the mules after they were loaded on the cars at Leonard; for unloading and detaining them during several days, without proper food and shelter, in wet and muddy pens at MeAlester; for failure, in reloading the mules at Me-Alester after such delay, to separate and place together in the respective ears the mules loaded therein at Leonard, and permitting them, instead, “to become mixed and mingled together” in the two cars; for delay in transporting the mules after they were reloaded at MeAlester from that place to East St. Louis, to which point, appellees alleged, they were compelled to divert said shipment, and did so divert and consigned the same to plaintiffs’ order; for injury to the mules from overeating after they reached East St. Louis, due to their starved condition, whereby they “became foundered and unfit for sale”; and' for the expenses of a trip plaintiffs were forced to make to East St Louis because of the delay and improper reloading of the mules complained of. In this petition appellees alleged the damages they had suffered to be $950.

The trial court found the facts to be as follows: One of the cars was loaded 3 or 4 o’clock of the afternoon of November 20, 1913, and the other about 5 o’clock of the morning of November 21st. The two cars left Leonard about 6 o’clock of said morning of November 21st, and reached McAlester in the nighttime of that day over the Missouri, Kansas & Texas Railway Company’s line of railway. That railway company then tendered the shipment to its connecting carrier, the Chicago, Rock Island & Pacific Railway Company, for carriage to Memphis. The latter company refused to receive the shipment because the mules had not been dipped, as required by the quarantine laws of Tennessee. Had it received and carried the mules on to Memphis it would not have been necessary to unload, feed, water, and rest them at McAlester, because they had not then been on the cars 28 hours. It became necessary, because of the delay at McAlester occasioned by such refusal, to unload the mules at Mc-Alester to comply with the federal law applying to shipments of live stock. Therefore, on the morning of November 22d the mules were unloaded at McAlester by the Missouri, Kansas & Texas Railway Company. It was then cold, rainy weather. The pens in which the mules were placed were muddy, without shelter, and without facilities for properly feeding the animals. When the Chicago, Rock Island & Pacific Railway Company refused the shipment appellant notified appellees of the fact. Appellee Clifton then went to McAlester. He was told that the quarantine authorities of Tennessee required that the mules should be dipped in an ar-senical solution before they were carried into that state. Said appellee replied that he “would not consent to having the mules dipped.” When the animals had been three days and nights in the pens, said appellee “ordered said shipment diverted to East St. Louis.” It was accordingly so diverted, moving to that point over “an entirely different route and by different carriers than it would have taken to the original point of destination.” The shipment reached East St. Louis on the morning of November 26th, and the mules were sold on the market there. Because of the condition they were in on account of delay in transporting them, improper feeding and handling, and exposure they were subjected to' while in the pens at Mc-Alester, the mules sold for $900 less than they otherwise would have sold for. Appellant did not agree that the shipment should be diverted to East St. Louis. Under the quarantine laws of Tennessee, had the mules been carried into the state of Tennessee, they could not have remained there unless dipped in the arsenical solution “either at the point of origin, en route, or on arrival at destination.” Neither appellees nor appellant’s agent at Leonard knew what those laws were at the time the contract covering the shipment was made. On facts found by him the trial court concluded that:

“Plaintiffs sustained damages occasioned by negligence and want of ordinary care on part of defendant and connecting carriers in that said shipment was delayed en route beyond a reasonable time for its transportation, and by such delay and by reason of confinement of said mules in muddy pens and exposure and improper handling and lack of feeding properly, to the amount claimed, to wit, $900.”

The appeal is from a judgment in favor of appellees in accordance with the conclusion reached by the court.

The complaint made in the first assignment that the court held appellant liable for injury suffered by the mules after the shipment was diverted from Memphis to East St. Louis is not supported by the record. Therefore the assignment must be overruled. The judgment was based on a finding that the mules reached East St. Louis in a damaged condition, due to “delay in transportation, rough handling, lack of feeding, and storage in muddy pens.” There was testimony to show, and the court found, that the mules were roughly handled, improperly fed and kept in muddy pens at McAlester, but there was no testimony tending to show, and the court did not specifically find, that they were subjected to such treatment after appellees directed that the shipment be diverted to East St. Louis. There was testimony showing, and the court found, that the shipment was delayed three days and nights at Mc-Alester, but he did not specifically find, and the testimony did not show, that any of the delay there occurred after the order was given to divert the shipment. Instead, a reasonable inference from the testimony and findings made by the court is that the mules were promptly and with due care transported from McAlester to East St. Louis after the order was given to send them to the latter place.

The contract covering the shipment contained a stipulation as follows:

“No, suit shall be maintainable unless instituted within 91 days after the happening of the injuries, delay or delays complained of, any statute of limitations to the contrary notwithstanding'.”

It is not contended that suit was not commenced within 91 days after the mules were injured as claimed. The contention is that the cause of action as set up in the amended petition, filed after the expiration of the 91 days, was not the one set up in the original petition, but was a new one, and therefore that the stipulation applied and the suit was not maintainable. We are of opinion the contention should be overruled. The allegations in the two petitions, so far as same are material to the question made, are stated above. It will be noted that the contract declared upon is the same in each of the petitions, and that in each of them the recovery sought by appellees was on account of injury to the mules, which appellees alleged was caused by appellant’s failure to comply with its undertaking to promptly and with due care transport them. The cause of action stated in the petitions was in effect the same, but it was set out with greater detail in the amended petition. Bigham v. Talbot, 63 Tex. 273; Railway Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Railway Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 157; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 864; Railway Co. v. Irvine, 64 Tex. 529; Railway Co. v. Yeale, 39 Tex. Civ. App. 37, 87 S. W. 202; Railway Co. v. Buckalow, 34 S. W. 165.

Tlie contract contained another stipulation as follows:

“The shipper shall, within 30 days after the happening of the injuries or delays complained of, file with some freight or station agent of the carrier on whose line the injuries or delays occurred his written claim therefor, giving the amount. Shipper’s failure to comply in time and manner with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries or delays to said live stock as aforesaid, and no suit shall be brought against any carrier except against the carrier on whose line the injury or delay occurred, and no damages shall be recovered except those set forth in the required written notice and claim aforesaid and no greater amount than claimed in said notice.”

Unless the filing of the suit within 30 days after the happening of “the injuries and delays complained of” was a compliance with the requirement of the stipulation it was not complied with. Appellant insists that the filing of the suit within the time specified was not a compliance with the stipulation. As we think it was (Phillips v. Tel. Co., 95 Tex. 638, 69 S. W. 63; Railway Co. v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422), it is not necessary to determine, as it would he if we thought otherwise, whether on the pleadings and facts in the record appellant had a right to complain of the failure- of appellees to comply with the requirement in the stipulation (Railway Co. v. Honea, 84 S. W. 267; Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 574; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834).

Assignments not disposed of by what has been said are believed to be without merit.

The judgment is affirmed. 
      ©=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     