ST. L. S. F. RY. CO. v. WATKINS

1. — Carrier — Bill of Lading — Pleading — Evidence.

Though plaintiff in a suit against several connecting carriers had not declared upon a specific written contract, the bill of lading issued by the initial carrier was admissible on proof of its execution; such execution could be shown by circumstantial evidence, such as its receipt by the consignees from the shippers in due course of business, and its recognition by the carriers in acting on it without objection in investigating plaintiff's claim; and the allegation that defendants had undertaken the transportation as partners not being denied under oath its execution by one was binding on all.

Statements made by an agent in reference to an act he is authorized to perform and while he is conducting the business or making propositions to that end, are admissible against his principal as part of the res gestae.

The admission of improper evidence was not ground for reversal where the trial was before the court without a jury and there was other sufficient evidence upon the point to which it was addressed.

Testimony as to the market value, in the aggregate, of a carload of goods, held sufficient to support a recovery, though apparently based on the retail value of the separate articles, the goods being in demand at the place and time in question and not to be had there in wholesale lots.

EIDSON, ASSOCIATE JUSTICE. —

This action was brought in the court below by appellees against the Houston Texas Central Railroad Company, the St. Louis San Francisco Railroad Company and the St. Louis, San Francisco Texas Railway Company, to recover damages to a shipment of a carload of stoves and hollowware from St. Louis, Missouri, to Llano, Texas. There was a trial in the court below without a jury which resulted in a judgment for plaintiffs against the St. Louis San Francisco Railway Company and the St. Louis, San Francisco Texas Railway Company, jointly, for $417, with interest at 6 percent per annum from November 10, 1905, amounting to $11 and costs, and in favor of the Houston Texas Central Railroad Company. The defendants against whom judgment was rendered have perfected an appeal to this court.

Appellants' first assignment of error complains of the action of the court below in admitting in evidence over their objections the bill of lading executed by the St. Louis San Francisco Railway Company for the car of goods shipped to plaintiffs, upon the ground that plaintiffs had not declared upon said bill of lading in their petition, and therefore were required to prove its execution. Conceding this proposition to be correct, proof of the execution of the bill of lading could properly be made by circumstantial evidence, which in our opinion was done in this case, as shown by the record. Plaintiffs having alleged in their petition that appellants belong to the Frisco System, and were partners, and there being no denial by appellants of such partnership, the bill of lading, although executed by one of the partners, was admissible in evidence against both.

We think the statements of McCormack and Franks, admission in evidence of which is complained of in appellants' second assignment of error, were properly admitted. It appears from the record that at the time McCormack made the statement objected to he was the agent of one of the appellants and actually engaged in tracing and locating the delayed car, which made his statement that the car had not reached Sherman, admissible as part of the res gestae. And the record shows that Franks was also the agent of one of the appellants at the time of making his statements, and was then actually engaged in an attempt to adjust plaintiffs' claim for damages, and at this time the car had just arrived with the goods damaged; and evidently, as appears from the record, plaintiffs and this agent were engaged in the examination and ascertainment of the character and extent of the damage to the goods. Under these circumstances, we think Franks' statement was also admissible as part of the res gestae. The statement and declaration of an agent made in reference to an act which he is authorized to perform, and at a time when he is conducting the business or making propositions to that end, is admissible against the principal. (City of Austin v. Nuchols, 15 Texas Ct. Rep., 156; Gulf, C. S. F. Ry. Co. v. Batte, 15 Texas Ct. Rep., 581; Missouri, K. T. Ry. Co. v. Cook, 8 Texas Civ. App. 381[ 8 Tex. Civ. App. 381].)

The testimony as to the statements of the witness Tarrence, he not being shown to be the agent of either of appellants, was not admissible against appellants; but the case being tried before the court, its admission was harmless, especially as there was ample evidence to warrant the judgment without it. The bill of lading being the act of appellants as partners, its recitals as to the condition of the goods when received were binding upon them. The case of International G. N. Ry. Co. v. Diamond Roller Mills, 82 S.W. Rep., 660, simply holds that the recitals of a bill of lading are not binding upon a carrier not a party to the bill of lading. We think the testimony as to market value of the goods was sufficient to justify the judgment of the court. The testimony as to the market value of the goods was not restricted to their price at retail. The testimony showed that the stoves could not be had in Llano, that the only place where they could be gotten was in St. Louis, that the supply in Llano was not equal to the demand for such goods at the time, and that if said goods had not been damaged their actual market value at Llano at the time they were delivered would have been in the aggregate the sum of $438, and that at that time they could have been sold for that amount. Their market value in bulk, under the circumstances, might have been equal to the amount they would have brought at retail prices in the aggregate.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.