Morris v. Davis

BLAIR, J. Opinions on several former appeals stating fully the nature of this suit are reported in (Tex. Civ. App.) 257 S. W. 328; (Tex. Civ. App.) 259 S. W. 592; (Tex. Com. App.) 272 S. W. 1103, and (Tex. Civ. App.) 292 S. W. 574, and suffice it to here state that the suit is one to recover damages for injuries to a shipment of cattle from Hugo, Okl., to Coleman, Tex., during the period of federal control of railroads, and that a trial to a jury resulted in a verdict and judgment in favor of appellee, the director general of railroads. By his appeal appellant presents two assignments or two propositions of error, which must be sustained and which require a reversal of the judgment. They are as follows: 1. Across the face of the printed bill of lading issued to G. B. McCanless, and covering a portion of the shipment of cattle in suit, was a written notation, “Cattle very, very weak one cow crippled in left front leg.” The railroad company signed the bill of lading by its agent and McCanless signed it as “shipper.” The proof showed McCanless to be in the employ of appellant as caretaker of the cattle and that he accompanied the shipment in that capacity. The notation is admitted not to be in the handwriting of Mc-Ganless. There was no proof as to when it was made or by whom made, and of course it was not shown from what source or how the party making the notation obtained his knowledge of the -facts stated. The notation was introduced in evidence over appellant’s objection that it was hearsay and not shown to have been made by appellant or any person acting for him. There was a sharp conflict in the evidence on the issue raised by the pleadings and submitted to the jury as to whether the cattle were in good physical condition at the time they were received for shipment. The bill of exception also shows that after the jury had deliberated more than 24 hours without reaching a verdict they sent for this bill of lading and within 2 hours thereafter found that the injuries to the cattle were not the re'-sult of any negligence on the part of appel-lee. So it is clear that the evidence related [111] to a very material issue in the case, and we think it was erroneously admitted, it being hearsay under the facts and circumstances above detailed. Lancaster v. Rogers & Adams (Tex. Civ. App.) 235 S. W. 646; Patterson v. Ry. Co. (Tex. Civ. App.) 126 S. W. 336. The authority, 22 C. J. 1109, announces the following uniform rule as to bills of lading: “Rills of lading are instruments of a twofold character, being at once contracts and receipts. In so far as they partake merely of the nature of receipts, they are subject to explanation or contradiction.” The authorities are also in accord that the part of the bill of lading which “relates to the receipt of the goods, their quality, condition, and quantity, is treated as a receipt, as distinct from the contract.” Meyer v. Peck, 28 N. Y. 590; Ellis v. Willard, 9 N. Y. 529; Alabama G. S. Ry. Co. v. Norris, 167 Ala. 311, 52 So. 891; Kent v. Central of Georgia R. Co., 144 Ga. 7, 85 S. E. 1017. The writings in the blank space left in a bill of lading for the purpose of inserting information with reference to the quality, condition, etc., of goods when received for shipment, are according to the following authorities admissible as prima facie evidence of the facts stated, but parol evidence is admissible to show the actual condition of the goods. Bissel v. Price, 16 Ill. 408; Kimball v. Brander, 6 La. 711; Warden v. Greer, 6 Watts (Pa.) 424. But a different case is presented here. The notation here is simply a writing across and over the face of the printed matter of the bill of lading. There is no proof as to who did the writing, except it is admitted not to have been written by appellant’s agent who signed the bill of lading. Nor was it shown when the notation was made—that is, whether before or after appellant’s agent signed the bill of lading. The notation is not contractual in any respect, and is separate and distinct from the contract, and, as above shown, there was no proof whatever as to its authenticity. In the case of Lancaster v. Rogers & Adams, the Court of Civil Appeals at El Paso held that a notation on a bill of lading, “Stock all in bad shape, none killed,” was erroneously admitted “because there was no proof of its authenticity.” So, under the facts and circumstances of this case, the party offering the notation on the bill of lading in evidence must first prove its authenticity with respect to the matters stated; otherwise it must be regarded as hearsay and not admissible. Patterson v. Ry. Co., supra. 2. The case was submitted to the jury on special issues, and over appellant’s objection the court charged the jury as follows’: “The burden of proof is upon the plaintiff to establish the material allegations in his petition by a preponderance of the evidence.” One objection to this charge was that it left the jury to determine what were the material allegations in the petition. The objection should have been sustained. There are numerous decisions by the appellate courts on this question, and they all hold that where a case is submitted on special issues, it is error to give a general charge which leaves it to the jury to find and determine whether a plaintiff has established by a preponderance of the evidence the material allegations of his petition. These decisions are based upon two grounds or reasons: First, because it is error to impose upon the jury the duty of determining what are the material allegations of the petition; and, second, that it is in effect a general charge instructing the jury to ascertain whether plaintiff is entitled to recover under the pleadings and proof, and therefore in violation of article 2189, R. S. 1925, which provides that where a case is submitted upon special issues only such succinct explanations and definitions as are necessary to make clear the issues submitted should be given. St. Louis Southwestern Ry. Co. of Texas v. Preston (Tex. Com. App.) 228 S. W. 932; Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 688; Houston & T. C. Ry. Co. v. Stribling (Tex. Civ. App.) 293 S. W. 890 (writ of error refused by Supreme Court); M., K. & T. Ry. Co. v. Thomason, 3 S.W.(2d) 106, opinion by this court. Appellant urged other objections to the above charge on the burden of proof, but since it is clear that the objection discussed requires a reversal of the case, we will not discuss them. The cause will be reversed and remanded for another trial. Reversed and remanded.