Stewart Threadgill v. El Paso S.W.

HARPER, C. J. This was a suit brought by appellants, Stewart & Threadgill, a co-partnership composed of J. F. Stewart and W. W>. Threadgill, against the El Paso & Southwestern Company and the Galveston, Harrisburg & San Antonio Railway Company, appellees, in which the appellants sought damages of the appellees for alleged negligence in the shipment of about 2,000 head of goats from Turquoise, N. M., to Del Rio, Tex., over the railway of the appel-lees, the appellants alleging that, on account of the delays and other negligence of the appellees, the goats were injured, and the, appellants thereby damaged in the sum of $2,-500. The appellee El Paso & Southwestern Railway Company answered by general demurrer and general denial. The appellee Galveston, Harrisburg & San Antonio Railway Company, by their first amended original answer, answered by general demurrer and general denial and a special plea that the shipment was an interstate shipment, and under the terms of the bill of lading appellants valued their goats at $3 per head, and thereby secured lower rates than they would have secured, and that appellants were estopped from claiming a greater value of said goats. The case was tried before the court without a jury, and on December 26, 1917, the court rendered judgment, dismissing the appellee El Paso & Southwestern Railway Company from the suit, which order of dismissal was entered nunc pro tunc on January 26, 1918, and on January 4, 1918, rendered judgment in favor of the appellee Galveston, Harrisburg & San Antonio Railway Company, from which judgments the appellants, Stewart & Threadgill, have appealed. We are asked to reverse this judgment up *595 on the sole ground that the trial court failed to file its findings of fact and conclusions of law upon proper and seasonable request, having been filed as provided by article 2075, Revised Civil Statutes of Texas of 1911. It will be noted from the statement of the nature of the case that for plaintiff to recover there were only two questions of fact to be determined by the trial court, viz. was the railroad company negligent in handling the goats? and were they injured or damaged by reason of such negligence? The judgment entered is equivalent to findings upon both in favor of defendant, and the law applicable followed in due course. We note also that a motion for a new trial was filed in which the sole point is urged that under the evidence the trial court should have found for the plaintiff. We further note that a statement of facts was prepared and filed and brought into this court with the record, and it is properly certified to by the trial judge. It is further noted that appellant’s counsel refused to agree upon a statement of facts solely upon the ground that the court had failed to make and file findings of fact and conclusions of law, and that there is no contention upon the part of appellant that the statement of facts is not full and complete, and it may be further, noted that by the assignments of error filed in the trial court the sole point raised, aside from the failure to file findings of fact and conclusions of law, is that the judgment of the court is contrary to the law and the facts. There is no suggestion in the brief of appellants that they have been prejudiced by the failure to file findings of fact and conclusions of law, and we think the record before us conclusively shows that no other assignment of error could have been made had the findings been made. Therefore, adopting the reasoning of Chief Justice Conner in his dissenting opinion in Emery v. Barfield, 156 S. W. 311, confirmed by the opinion of the Supreme Court, 107 Tex. 306, 177 S. W. 952, we hold that: “It does not appear that the omission of the trial judge to duly file his conclusions has prevented a proper presentation of the questions involved in this appeal, nor has it operated to the prejudice of appellants in presenting their appeal. It does not therefore, in itself, warrant a reversal of the judgment.” Rule 62a (149 S. W. x). Affirmed. Footnotes [1] <S=5>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes