# Davis v. Simmons > Court of Appeals of Texas · March 15, 1922 · 240 S.W. 970 URL: https://www.frixlaw.com/law-library/cases/9829225 ## Case - **Full name:** Davis, Director General and Federal Agent v. Simmons. - **Court:** Court of Appeals of Texas - **Decided:** March 15, 1922 - **Citations:** 240 S.W. 970; 1922 Tex. App. LEXIS 740 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Hupp - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9829225 ## Opinion text On Motion for Rehearing. [13,14] The evident purpose of the charge of which complaint is made in the twelfth assignment is that it was not drawn to submit the contributory negligence pleaded, but it was submitted upon appellee’s excuse for not then sooner emptying the pen so that the remaining cattle could be unloaded into it and presenting the circumstances upon which the appellee relied as acquitting him of negligence. The jury was not instructed that the conductor had the right to make an agreement to wait, but the charge simply submitted to the jury if appellee had made some arrangements or had an understanding with the conductor for time to secure horses to hold the cattle and that he relied upon such arrangements and exercised ordinary care in securing them for that purpose, then the defendant, in the exercise of ordinary care, was required to wait a reasonable time for that purpose. In other words, the conductor was not. required, to wait simply because of the arrangements he had made, but in the exercise of ordinary care he was required to wait a reasonable time. This, we believe to be the meaning of the charge. The jury were also required, in connection therewith,- to find that the shipper used ordinary care to procure the horses, etc. In such a ease the shipper would not be guilty of contributory negligence. Such facts, if so found, negatived the charge of contributory negligence on the part of the shipper as pleaded by appellant. Liability was not sought to be fastened on appellant by this charge. The shipper, in order to be exonerated and before he could be exonerated by the jury, they were required to find not only the arrangement, but that it was made by the appellant in the exercise of ordinary care and then it could only be for a reasonable time. [15] It seems to be the purpose in sending out a conductor in charge of a train of cattle to authorize him to exercise ordinary care therewith and he may be authorized to make arrangements with the shipper to await a reasonable time to effect a delivery which was in aid of the performance of the duty owing by his master to the shipper. Being the duty of the master to deliver the authority of the conductor in charge of the train should be implied, we think, and that it is within the apparent scope of his authority in the exercise of ordinary care to arrange to wait a reasonable time on the shipper. The authorities relied upon by appellant are cases where employees, servants, or agents sought to bind their master beyond the apparent scope of their authority, or when they had no such authority. The assignments and propositions in appellant’s brief do not raise the question which on motion and argument thereon is sought to be presented. The question originally presented was that there was no authority shown authorizing the conductor to make contracts for appellant. We regarded the charge-as presenting one phase of the carrier’s duty -with reference to delivery of the shipment,- and that, as the carrier had chosen the conductor as his representative in that service, the shipper would have the right to rely upon an arrangement made with the conductor acting in the exercise of ordinary care to give a reasonable time to empty the pens. The shipper was not justified by the arrangements unless the conductor was exercising ordinary care, or to assent to a delay for an unreasonable time. It seems to us the appellant has given a strained construction to the charge, especially when considered in the light of the entire charge of the court the criticism of this particular one is not justified. The court first instructed the jury that if was the duty of appellant to deliver the cattle with reasonable dispatch and within a reasonable time, and, if it was guilty of negligence- in not unloading the cattle into the pens within a reasonable time and with reasonable dispatch, etc., the shipper could recover. Second, it was the duty of the shipper to accept his cattle at their destination with reasonable dispatch, etc. This being *978 the charge- complained of: Third, if he had not such arrangements made, etc., if the in1 jury resulted from the negligence of appellee in not receiving the cattle, or any act or omission on his part in not receiving the cattle from the pens contributed to such injury, and because of such acts or omissions appellant could not deliver the remainder in the pens then to find for appellant. Fourth, if the appellant, after arrival, exercised ordinary care and delivered the remainder into the pens. within a reasonable time, to find for appellant. Fifth, at the request of appellant the court gave his requested charges to the effect if a man of ordinary prudence would have made arrangements and provided to remove the cattle from the pens as unloaded, so as not to interrupt the unloading by filling the pens, and if such failure by appellee to make such provision was responsible, either in whole or in part, for the injury, then it was the jury’s duty to return a verdict in favor of defendant. Sixth (at appellant’s request) the jury was told it was the duty of appellee to remove from the pens the cattle first placed therein after being unloaded within a reasonable time, to be determined by all the facts and circumstances and appellee’s relation thereto. And if he failed to remove the first cattle from the pens within a reasonable time then lie,' would not be entitled to recover. It is now and was our view on the original hearing, that the trial court sought only to submit the carrier’s duty to deliver, using ordinary care to do so within a reasonable time. It was the duty of the shipper to receive the cattle and use ordinary care to do so, and, if he did not, he would not be permitted to recover if his failure caused the injury. If in making the arrangements to empty the pens, of which the company under the circumstances knew the necessity, the conductor in permitting the shipper to obtain horses to hold the cattle to empty the pens, if he acted in the exercise of ordinary care in doing so, he could give reasonable time for that purpose. When the charge is read as a whole, the one of which complaint is made is not subject, in our judgment, to the criticism that the jury should find for the appellee if the conductor consented to wait for the horses, whether he did so in the exercise of ordinary care and gave an unreasonable time therefor; but the trial court, we think, left it to the jury whether the conductor, in so consenting, was exercising ordinary care and whether the time was a reasonable one. Interpreted in the light of the facts and circumstances, and in the light of all the other charges, we do not think the question of ordinary care and reasonable time was withdrawn from the jury. In response to a request for additional findings, we make the following: The pens at Ohanning were inadequate to unload the entire shipment of the train ' therein. Appellant knew that fact when it accepted the shipment and undertook to deliver the cattle at that point. The appellee also knew that fact when he shipped his cattle. He shipped a carload of horses with the train to be used for the purpose of holding the first pen full until the remaining cattle on the train could be unloaded into the pen. The conductor and appellant knew oí facts which charged appellant with notice of this purpose. The horses were first unloaded and fed four blocks from the pen, and appellee could not empty the pens without the horses, and that he obtained the horses and men in a reasonable time for that purpose after the pen was filled and arrangement was made with the conductor to obtain the horses, and that such arrangement was made within the exercise of ordinary care on the part of the conductor in charge of the train, by which he gave a reasonable time to the shipper to obtain the horses, and that the horses were obtained within a reasonable time, and appellee was not guilty of contributory negligence in receiving the cattle in the manner in which he did under the circumstances of this case. That the cattle were being unloaded by spotting the • cars at the unloading chute by means of the engine attached to that train, and that there was then no other at that time and place. The conductor, in leaving with the engine, left the appellee without any adequate means to unload the remainder of the cars of cattle until another engine could be obtained twelve hours latfer. That the engine thus used was a necessary means to effect the delivery of the cattle as appellant had agreed to do. There was a station agent at Ohanning and his office was at the depot, which was three or four blocks from the unloading pen; but he was not at the depot until after the engine and conductor had left. There was, however, a boy in charge of the telegraph office at the depot as an operator at the time the conductor says he went to the depot to telegraph for instructions. The train dispatcher gave the telegram sent to his office by the conductor, which, as he states, is as follows: > “I have unloaded only part of my train of stock. The pens are full and owner refuses to empty pens to allow remainder of shipment to be unloaded. He claims he will have to get cow punchers from the ranch to handle the stock already unloaded before he will unload balance of stock. Advise.” The dispatcher replied: •“Leave the stock spotted and will have extra 313-north unload it. You may proceed.” The conductor, however, testified that he wired that the owner would not unload until- daylight and that was the reason he wired for instructions. The shipper, appellee, testified he only asked for time to go four blocks for his horses. The dispatcher says *979 be would bave beld tbe conductor at Chan-ning to complete tbe unloading of tbe shipment if tbe shipper bad been in position to empty tbe pens so tbe remainder of tbe shipment could be unloaded. Tbe facts in this ease are sufficient to justify tbe finding that £he shipper was in position to empty tbe pens after a few minutes’ delay and that tbe conductor misstated tbe facts in his wire to the dispatcher; that, if the dispatcher bad known the truth of tbe matter, tbe engine and train would bave been beld; and that it was not because of any schedule time that he directed the conductor to proceed. The conductor testified he bad four hours’ time limit after he got to Texline before the limit- would have prevented bis working, longer and that be could bave spent that much time at Ohanning in unloading cattle. He further testified that be left Ohanning at 6:25 a. m., and that it was then about daylight ; that the trains were then running on mountain time, and that 6 o’clock mountain time at the time of this shipment, was 7 o’clock sun or central time; that be finished loading into tbe pens the cattle that were unloaded about “5:45 a. m. and left Ohan-ning 6:25 a. m., which was in 40 minutes.” He said after unloading they took coal and water. This witness also testified they first unloaded the horses, which were shipped in the train, and be saw them around there after they were unloaded. He did not know it if they were taken to the lots for the purpose of being fed. Ohanning is an intermediate point between Childress and Texline, the division point between which the crew in question made this particular trip; but the conductor shows he had four more hours to unload the remaining cars if he bad reported the facts as they were to the dispatcher. We believe the above covers the findings requested, not as the appellant asked that they be found, but as supported by the evidence and the verdict of the jury. [13] The appellant also requests that we certify this case to the Supreme Court, because, as it is asserted, that an' important legal question is involved, not controlled by any exact legal precedent in this state, etc. We suppose, if the Supreme Court finds the question of such importance to the jurisprudence of this state, that that court will grant a writ of error. In so far as we view the questions involved, there is nothing novel in the principles governing this case. The facts may not be in the usual run and may be out of the ordinary, but the principles, as we conceive it, are the same as in the ordinary run of cases. The charge, as we construe it, is not as appellant interprets it, and we see no ground for supposing that the jury were probably misled or that any injustice has been done by the charge of which complaint is made. We believe the case has been fairly tried and should not be reversed, and there is no occasion, as we conceive the matter, to certify any question, in this case to’ the Supreme Court. The above motion will be overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9829225. Public record. Not legal advice.