Missouri, Kansas & Texas Railway Co. v. Cocreham

FISHER, Chief Justice. There was no error in overruling the demurrer to the petition. It set out sufficiently the items of damages. The charge of the court gave the correct rule as the measure of damages that should govern in this case, and the evidence in the record warrants the charge in this respect. The testimony of witness McGehee was admissible, and we think the verdict and judgment as to the extent of damages is sustained by the evidence. That branch of the case where the appellant sets up a failure to give notice of the extent of the injuries to the stock before removal, and giving notice within thirty days of the claim for damages and requiring suit to be brought within ninety days, has been by this court recently passed upon in the case of Railway v. Carter, 9 Texas Civil Appeals, 677, in which all the points here raised were decided against appellant. The shipment in this case was after the Act of 1891 went into effect, and the point of destination was Hearne, Texas. It is true, the contract of shipment in this case was entered into in the State of Missouri, and the laws of that State would govern and control it (65 Texas, 16, 17), but those laws are not pleaded and proven, and we do not judicially know what they are. Such being the case, the law of the forum will apply. Dall., 422. The judgment is affirmed. Affirmed. Delivered March 18, 1895.