Houston and Texas Central Railway Co. v. T. D. Harn, 44 Tex. 628

Moore, Associate Justice. The court did not err in excluding the testimony offered by appellant to show the amount of damage which was done the buggy, and to excuse the failure to transport it to the place of its delivery. It is no doubt in general true, as urged by counsel for appellant, that where goods are merely damaged by casualty, for which the carrier is responsible, the owner cannot abandon them and go against the carrier as for a total loss, but is bound to receive the goods when tendered, and is only entitled to compensation to the extent of the injury done them. (2 Red. on R.

W., 185; 13 Ind., 265.) But no proper predicate had been laid by appellant for the introduction of such testimony. It was not pretended that the buggy had been tendered to appellee, or that it had been carried by appellant to its place of delivery. And it was not alleged in the answer that appellee, by his acts or declarations, had discharged the contract of shipment and delivery at the point of destination, or waived a tender of damages actually sustained.

Appellee charges a breach of the contract, and an entire loss of the property through neglect and failure of appellant to deliver as contracted for in the bill of lading. If appellant desired to show that the buggy was merely damaged and not totally destroyed or lost, and that appellant was released from tendering it at the place where by the bill of lading it was to have been delivered, it was certainly necessary to set up these matters in the answer. The defense to which the testimony would apply, with any pertinency, was in the nature of a confession and avoidance, and should have been specially pleaded.

It was not admissible under the general denial or special answer that the buggy had been lost by act of God without fault or negligence of appellee, which were appellant’s only pleas. As the property was merely damaged and not lost or destroyed, evidently appellant was subject to an action for its non-delivery, even though the damage resulted from an “act of God,” for which appellant was not responsible. In view of these facts we could hardly reverse the judgment if it clearly appeared that the damage was occasioned by

an act of this character, or if it clearly appeared that there was error in the instructions of the court in this particular. The defense, if appellant had delivered or proffered to dedeliver the buggy, would at most have only gone in mitigation of damages. But aside from this view of the matter, we perceive no valid reason why the verdict against appellant on its answer alleging that the buggy was lost and destroyed by act of God, and not by reason of its negligence, should have been set aside.

It is urged that the court failed to instruct the jury as to the nature and character of an “ act of God,” which relieves the carrier from responsibility, and without such instruction it is said the jury had no means of determining whether .the evidence was sufficient to excuse appellant or not. But it has been often held that the mere omission of the court to properly instruct the jury in civil cases is no ground for a reversal of the judgment. It is the duty of the party who insist that a particular charge should have been given, to ask it.

The appellant has no just ground to complain of the instructions given by the court, and that asked by appellant was not applicable to the issue presented by the pleading, or warranted by the evidence submitted to the jury, and was properly refused by the court. On the question of negligence in securing the buggy on the car, the testimony, to state it most favorably for appellant, was conflicting. And it cannot he said that it is so clearly shown by the evidence that the damage to the buggy resulted from “

an act of God ” as to relieve appellant from responsibility as a common carrier. The court therefore did not err in refusing to set aside the verdict and grant a new trial. The judgment is affirmed. Affirmed.