HOVENCAMP et al. v. UNION STOCKYARDS CO., 180 S.W. 225

YANTIS, J. Plaintiffs in error sued to recover damages from the Missouri, Kansas & Texas Railway Company of Texas for the alleged negligent handling of a shipment of bulls during their transportation and carriage by said railway company from Ft. AVorth, Tex., to San Antonio, Tex., and to recover damages from the defendant in error, the Union Stockyards Company, alleged to be a corporation doing business in . Bexar county, Tex., for its alleged negligence in handling the cattle after they were delivered to it by the said railway company.

There was a judgment in favor of the railway company discharging it from liability, and no appeal therefrom was taken. The plaintiffs in error recovered a judgment against the Union Stockyards Company, and upon appeal the honorable Court of Civil Appeals reversed and rendered said judgment in favor of the defendant in error. The writ of error was granted by this court on the petition of XIovencamp et al., plaintiffs in error; this court expressing the view that the case should not have been rendered by the honorable Court of Civil Appeals. We adhere to that view.

We have made a careful examination of the evidence, and have reached the conclusion that we cannot say there is no evidence of probative force tending to support the allegations of negligence upon which a recovery was sought.

The evidence is sufficient to make an issue of fact as to whether the Union Stockyards Company was guilty of negligence in failing to notify the plaintiffs in error, or their agent, the Saunders Commission Company, of the arrival of the bulls, and in the manner in which said Stockyards Company exposed said bulls to the heat of the sun in open and unprotected pens; these being the grounds of negligence upon which a recovery was predicated. It was not error for the trial court to overrule the general demurrer to the original petition on whiqh the case was tried.

While the allegations would be insufficient against appropriate special exceptions, we think they are sufficient as against a general demurrer, where the rule is that every reasonable in-tendment should be indulged in favor of the pleading thus attacked.

There is no allegation in the petition which directly alleges how and in what manner it became the duty of the Union Stockyards Company to notify the plaintiffs in error, or its agent, the Saunders Commission Company, of the arrival of the bulls, but the petition does allege that it was the duty of the Stockyards Company to so notify the plaintiffs, or their agent, and that it neglected so to do.

The petition also alleges that the bulls arrived in bad condition, that several were in a dying condition, and that the Stockyards Company negligently placed them in open and unprotected pens, and thereby exposed them to the heat of the sun, and that such conduct was the direct and proximate cause of the death of some of the bulls, and of the injuries to several others. These allegations would admit evidence in support thereof.

It would be better xolead-ing to show how the duty whose failure is complained of arose, rather than to plead a conclusion, but there was no special exception to the foi'm of the allegation, and it cannot be said, in view of the allegations recited, that the petition was fatally defective when giving it the benefit of every reasonable intendment, which it is our duty to do.

We cannot sustain the contention of the defendant in error that the agents and servants of the Stockyards Company who handled the bulls were handling them exclusively as the agent and servants of the Saunders Commission Company, and that the latter alone would be liable for their negligence, if any, in the manner of caring for the bulls.

There is some evidence of this nature which might tend to prove that in several particulars the Saunders Commission Company, agent for the plaintiffs in error, had the power of direction over said servants, but it does not go to the extent of establishing, as a matter of law, that such power of control and direction was exclusive, there being evidence from which it could be inferred that it was the duty of the Stockyards Company to control its servants in the matter of giving prompt notice of the arrival of the bulls, as well as the degree of care the Stockyards Company should give the bulls until such time as the Saunders Commission Company could be notified of their arrival.

There is evidence from which it might be inferred by the jury that the agents and servants of the Stockyards Company were employed by it, and paid by it, and that the business of the Stockyards Company was to furnish pens for cattle to unload, weigh, feed, and water, and deliver them into the pens set aside for the use of the several commission agents in cases where the shipment was to any of the commission men who had arranged with it for the use of its pens, and that all this service was done by the defendant in error for hire; a charge being made and collected by it for such services.

This was the line of its business which it conducted for profit, quite like the keeper of a livery stable conducts his business, and is similar to the business of the agistor who allows the use of his pasture to the owners of cattle ■ and horses for hire, in which cases it is well settled that the duty arises to exercise ordinary care to safely handle the stock intrusted to the livery stable keeper, or to the agistor.

We think the same rule would apply in the instant case, except as to the performance of such duties by the servants of the Stockyards Company as were to be performed under tlie exclusive direction of tlie Saunders Commission ¡Company.

Tlie (evidence presented on this appeal is not conclusive that the Saunders Commission Company had any control over such servants in the matter of giving notice to it of the arrival of the hulls, or in the matter of the proper care of hulls arriving in an overheated condition, lite these bulls arrived, until they could be actually delivered to the Saunders Commission Company, or until notice of their arrival and condition could be made to it.

It was upon these questions that the plaintiffs in error alleged a failure to exercise ordinary care by the Stockyards Company and its servants, and we hold negligence could be predicated upon such questions, and it would be for the jury to determine from the evidence whether such negligence was, in fact, committed. Several objections are leveled at the court’s charge. Some of them are well taken, and must he sustained. The first paragraph of the court’s charge authorized a recovery against the Union Stockyards Company for the negligence that occurred during the transportation of the hulls from Ft.

Worth to San Antonio. This was error as applied to the defendant in error, as the undisputed evidence shows that the Stockyards Company had no control of the hulls until they were delivered to them subsequent to their shipment from Ft. Worth to San Antonio. Only the railroad company would be liable for injuries which were caused by negligence in the manner of shipment. The construction we give to this charge we realize was not intended by the learned trial judge, but still it contains the vice stated, and was calculated to mislead the jury.

The court’s charge on the measure of damages must have been intended to have application in case the jury should find damages against the railroad company, for it does not announce the correct rule as applied to the Union Stockyards Company, having in view the evidence introduced.

The charge is as follows: “If you find for the plaintiffs, the measure of the damages will be the difference between the market value of the bulls in San Antonio on May 5, 1906, if they had been delivered to the plaintiffs uninjured, and the market value in the condition they were in when delivered to thg plaintiff, not to exceed, however, the sum of $950, which is the amount claimed by plaintiffs in their petition, with interest from May I) 1906, to date at the rate of 6 per cent, per an-num.” The true measure of damages for injury to live stock when negligently inflicted during transportation is the market value at the place of delivery of those killed or rendered worthless, and the measure of damages for those that were not killed or rendered worthless, but which were injured during shipment, would be the difference between their market value as delivered and what it would have been had they been handled with proper care during shipment.

The charge on the measure of damages which was given allowed a recovery against the defendant in error for the injuries that were inflicted during their transportation, for which, under the facts, only the railroad company could be liable. It authorized a recovery against the defendant in error for the difference between the value of the bulls in an uninjured condition and their value when delivered to the plaintiffs in error.

But the undisputed evidence shows that some of the bulls were badly injured, and some of them in a dying condition, when they were received by the defendant in error, and damages for such injuries as were inflicted before the defendant in error received them should not be recovered from the defendant in error.

The true measure of damages as applied to the defendant in error should be the difference between their market value in San Antonio in the condition they then were when received by it from the railroad company and the market value when delivered by it to the plaintiffs in error, except that it should not be held responsible for the value of any of the bulls which died as the proximate result of injuries inflicted during transportation, but as to the bulls which died it should only be held responsible for the market value in San Antonio of those that died as the proximate result of its own negligence, if any, and not for the value of those that would have died, if any, from the injuries received before they were delivered to the defendant in error.

Railway v. Klepper (Civ. App.) 24 S. W. 567; Railway v. Godair, 3 Tex. Civ. App. 514, 22 S. W. 777; Railway v. Butler, 31 Tex. Civ. App. 576, 73 S. W. 84; Railway v. Leibold (Tex. Civ. App.) 55 S. W. 368; Railway v. Johnson (Civ. App.) 29 S. W. 430.

We conclude that the honorable Court of Civil Appeals erred in rendering judgment for the defendant in error, which judgment should be set aside, but we hold that the judgment of the trial court should be reversed, and the cause remanded for another trial as between the plaintiffs in error and the defendant in error, but the judgment of the trial court should be affirmed as between them and the Missouri, Kansas & Texas Railway Company of Texas; and it is so ordered.