International & Great Northern Railroad Company et al. v. A. G. Startz, 97 Tex. 167

WILLIAMS, Associate Justice. action was begun by defendant in error against the International & Great Northern Railroad Com pany, the Texas & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries to cattle shipped over the lines of defendant from New Braunfels, Texas, to East St. Louis, 111. The petition alleged, that, in the carriage of the cattle, defendants were copartners and each the agent of the others. The International & Great Northern Railroad Company denied, under oath, this allegation, but neither of the other defendants did so.

The cattle were received by the International & Great Northern Railroad Company at New Braunfels, under a written contract agreeing to carry them from that point to Longview, its terminus, stating the destination to be East St. Louis, and relieving it from liability for injuries which might occur on any other line. Neither of the other carriers was mentioned in the contract, and no contract or other undertaking of theirs is shown—except such as arose from their transportation of the cattle.

The District Court rendered judgment against all of the defendants, jointly and severally, for $2000, the whole amount of .'the damage sustained by the cattle in transit, the judge finding that part of the injury was caused by the first carrier and part of it by the others, but that the evidence did not enable Mm to determine -what part of the whole was caused by either.

During the trial plaintiff offered in evidence accounts sales rendered to him by his commission merchants, giving the weights of the cattle when sold, the prices received, and other facts which need not be stated, and these were admitted over the objection of defendants that they were hearsay. This objection was, we think, well taken and should have been sustained. The papers contained only the ex parte statements of a third party which was clearly hearsay.

Counsel for defendant in error does not contend otherwise, but insists that there was other competent evidence to support the judgment, and that, as the case was tried before the judge, the admission of incompetent evidence is not ground for reversal. The rule of practice asserted in this contention is correct, but we are unable to apply it to this case, for the reason that it is by no means clear that the judgment is supported by other competent evidence.

The plaintiff’s chief complaint was that, by reason of delay and improper treatment in shipment, the cattle lost weight and therefore did not sell for as much as they ought to have brought in the market. The evidence is sufficient to show what the cattle, 'if properly handled and promptly carried to market, ought to have weighed, but when we come to inquire what they did weigh, the evidence, outside the accounts sales, is very unsatisfactory.

Plaintiff, himself, states that he learned through a telegram that the weight per head was about 180 pounds less than it should have been, but this telegram was itself hearsay and incompetent and, besides, its contents were riot stated. Pfeuffer testified that be saw some of the cattle weighed and heard the weigher call out some of the weights but does not state the weights called out. His testimony as a whole leaves it in doubt whether he had independent knowledge of the actual weight of the cattle or not. The meaning of his statements as they are written in the record is not clear.

The rule of practice assumes that the judge hearmg all of the evidence has distinguished between the competent and incompetent, and that, where the former is clearly sufficient to support the judgment, he acted upon it rather than the latter. But in this case the hearsay evidence furnishes the only definite basis in the record for a judgment, and as the trial judge ruled that it was admissible, we do not think it a fair presumption that he disregarded it and based his judgment upon such uncertain evidence as otherwise appears.

It was in plaintiff’s power to prove the facts stated in the accounts sales by competent evidence and thus have furnished, as he should have done, definite data by which to estimate his damage. We are also of the opinion that the court erred in giving judgment against the International & Great Northern Railroad Company for the damage inflicted by the other defendants. Its plea met the allegations of partnership and agency and they were not sustained by any evidence. It was not, therefore, jointly liable under a contract like that in evidence for damages caused by other carriers.

The other defendants are not, perhaps, in a situation to complain of this feature of the judgment, but, as the case is reversed upon the ground first noticed, further examination of this is unnecessary. The rules for determining the liabilities of the several carriers are given in former decisions. Gulf C. & S. F. Failway. Co. v. Edloff, 89 Texas, 458; Gulf C. & S. F. Failway Co. v. Cushney, 95 Texas, 309. Reversed and remanded.