Gillett v. Missouri, etc., Ry. Co. of Texas exception was taken to the judgment in the court below, so far as the bill of exceptions shows, and the exceptions, if any were taken and reserved, should be shown by the bill of exceptions. This being so, there is nothing in the record upon which to base the assignments of error. It may be said, however, that the judgment appealed from was properly awarded under the pleadings upon the agreed statement of facts on which the case was tried. The first count in the complaint declared against the appellee as a common carrier. Under the agreed statement of facts the liability, if any, of appellee was that of warehouseman, and not common carrier. Railroad Co. v. Grabfelder, 83 Ala. 200, 3 South. 432; Kennedy v. Railroad Co., 74 Ala. 430; Railroad Co. v. McGuire, 79 Ala. 396. The second court, if it is good for any purpose, seeks a recovery against the defendant as a voluntary bailee. Under this count, the burden of proof was on the plaintiff to show negligence, which was averred. The record does not show that any evidence was offered to support the averment of negligence. We find no error in the record, and the judgment is affirmed. GILLETT v. MISSOURI, K. & T. RY. Co. OF TEXAS. (Court of Civil Appeals of Texas, March 19, 1902.) [68 S. W. Rep. 61.] Goods Injured by Cold*--Defenses-Following Consignee's Directions. Where a shipment of vegetables was made in the month of February, when freezing weather is not unusual, and the consignors directed the carrier to leave open a vent in the car, they could not recover for loss caused by severe, but not unprecedented, cold weather. Error from Bell county court; D. R. Pendleton, Judge. Action by J. T. Gillett against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff brings error. Affirmed. W. R. Butler, for plaintiff in error. KEY, J. Suit for damages to a car load of cabbage shipped from California to Temple, Tex. From a judgment in favor of the defendant, the plaintiff has appealed. The shipment was made early in the month of February, and the consignors directed the carrier to keep the vent in one end of the car open to the point of destination. On account of cold weather, some of the vegetables froze. Freezing weather is not unusual in this state in the month of February, and it is *See generally, extensive note appended to Allan v. Penn. R. Co., 10 Am. & Eng. R. Cas., N. S., 347. Gillett v. Missouri, etc., Ry. Co. of Texas presumed that the consignors knew that fact when they gave the directions referred to, and were willing to take the risk of injury from such weather. While the testimony shows that the cold spell referred to was severe, it does not show that it was unprecedented; and, such being the case, we hold that it was not the duty of the carrier to disregard the consignor's instructions, and close the vent which they directed to be left open. Judgment affirmed. On Rehearing. In his argument on behalf of the motion, counsel for plaintiff in error contends that inasmuch as defendant in error pleaded that the damage, if any, was caused by an unusual and unprecedented spell of cold weather during the transportation, such plea constitutes an admission of the facts so averred, and plaintiff in error is entitled to have the case decided by this court the same as if the trial court had found the fact to be as averred in defendant in error's answer. Plaintiff in error, who was the plaintiff in the court below, sought to recover damages on account of negligence charged against the defendant in error, who was the defendant in that court. The defendant filed a general denial, and followed that plea with several special pleas, one of which contained the averments referred to. It is settled doctrine in this state that when a defendant files a general denial, and follows that with a special plea, the matters averred in the latter plea are not to be taken as confessed, in support of the plaintiff's cause of action. The general denial puts the burden upon the plaintiff to prove all the material allegations in his petition, regardless of what may be averred by the defendant in a special answer following a general denial. Fowler v. Davenport, 21 Tex. 627; Duncan v. Magette, 25 Tex. 245; Printing Co. v. Copeland, 64 Tex. 354; Young v. Kuhn, 71 Tex. 645, 9 S. W. 860; Silliman v. Gano, 90 Tex. 637, 39 S. W. 559, 40 S. W. 391. The trial court found as a fact that the vegetables shipped were damaged by a severe spell of cold weather, but did not find that it was an unusual or unprecedented spell of weather, and the testimony sustains the finding made. Under the authorities cited, the testimony, and not the defendant's answer, is to be looked to in determining the character of the weather. The court also found as a fact that the vegetables froze because the ventilator in one end of the car was left open, but that it was not negligence on the part of the defendant to leave the ventilator open, under the circumstances. Appellant did not ask for a new trial, and therefore the case comes within the ruling of this court in Black v. Black, 67 S. W. 928, 4 Tex. Ct. Rep. 178, where it was held that even in a nonjury case a judgment cannot be assailed on account of insufficiency of testimony when no motion for a new trial Southern Ry. Co. v. Horner has been made. But looking to the testimony, we are not prepared to say that the finding is wrong, and that the carrier should have disregarded the shipper's instructions, and closed all the vents in the car. The motion for rehearing is overruled. SOUTHERN RY. Co. v. HORNER. (Supreme Court of Georgia, April 29, 1902.) [41 S. E. Rep. 649.] Injury to Freight-Pleading-Joinder of Action Ex Delicto with Statutory Action. Where a petition against a railway company contained two counts, one setting out a cause of action arising ex delicto (being for a breach of its public duty as a carrier), and the other alleging a liability under the statutory obligation imposed by section 2298 of the Civil Code (which provides that the last connecting carrier who receives goods in good order shall be liable), a demurrer to the petition undertaking to point out as defects therein that it set forth in one count an action ex contractu, and in another the statutory liability above referred to, was not well taken, inasmuch as such a petition does not undertake to join two such causes as those referred to in the demurrer. It in fact joins a cause of action ex delicto with a statutory right of action, and not a cause of action ex contractu with the statutory right. (a) Properly construed, the first count in the petition filed in this case set forth a cause of action ex delicto. Same-Agreement as to Value of Horse-Limiting Liability.* Presumptively, the court properly submitted to the jury the question whether, under the evidence, there was an actual agreement as to the value of the horse, or whether the bill of lading introduced in evidence was merely an arbitrary preadjustment of damages, in case the property shipped was lost or damaged, for the purpose of limiting the liability of the carrier against the consequences of its own negligence. (a) Such an issue properly arose in the present case because of the wording of the bill of lading. Railway Co. v. Murphey, 38 S. E. 970, 113 Ga. 514, 53 L. R. A. 720. (b) There was sufficient evidence to support the finding that there was no actual agreement as to value. Damages-Interest. While a verdict for damages in an action ex delicto cannot lawfully embrace interest as such, no such point was properly made on the verdict returned in the present case; for it was attacked only by a general assignment that it was contrary to law and evidence, which does not present the specific objection that it unlawfully embraced interest as well as principal. (Syllabus by the Court.) Error from city court of Atlanta; A. E. Calhoun, Judge. Action by T. M. Horner against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. Dorsey, Brewster & Howell, Arthur Heyman, and Sanders McDaniel, for plaintiff in error. Arnold & Arnold, for defendant in error. PER CURIAM. Judgment affirmed. LEWIS, J., absent on account of sickness. *See note, 13 Am. & Eng. R. Cas., N. S., 170; Loeser v. Chicago, M. & St. P. Ry. Co. (Wis.), 8 Am. & Eng. R. Cas., N. S., 421. SUSONG 7. FLORIDA CENT. & P. R. Co. (Supreme Court of Georgia, April 28, 1902.) [41 S. E. Rep. 566.] Carriers-Injury to Freight-Live Stock Shipment*-Evidence. The evidence authorized the verdict. The requests to charge which were refused were, so far as legal and pertinent, covered by the general charge, which fairly submitted to the jury the issues involved in the case, and the charges excepted to were substantially correct. The judgment of the trial judge refusing to grant a second new trial will not be disturbed. (Syllabus by the Court.) Error from city court of Savannah; T. M. Norwood, Judge. Action by W. A. Susong against the Florida Central & Peninsular Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed. Alexander & Hitch, for plaintiff in error. Adams, Freeman, Denmark & Adams, for defendant in error. COBB, J. Susong sued the Florida Central & Peninsular Railroad Company for damages alleged to have been sustained by the failure of the defendant to safely transport and deliver certain live stock which it had contracted to deliver to the plaintiff. The trial resulted in a verdict in favor of the defendant, and the case is here upon a bill of exceptions sued out by the plaintiff, complaining that the court refused to grant him a new trial. While the evidence was conflicting in some particulars, the jury could have found therefrom the following state of facts: The plaintiff delivered to the Southern Railway Company, at Newport, Tenn., a car load of horses, in which were a certain red bay horse, about six or seven years of age, and a certain chestnut mare, about five years of age, to be transported by the Southern Railway Company and its connecting carriers to Savannah, Ga. The car was unloaded and reloaded at different points between Newport, Tenn., and Columbia, S. C. At the latter point the car was unloaded and reloaded, and the seals of the Southern Railway Company placed upon the doors of the car, and in this condition was delivered to the defendant. The defendant did not receipt for the car "as in good order," but received the same without exception. The car was transported to Savannah in exactly the same condition in which it was received from the Southern Railway Company at Columbia, and the horses which were thus received from the Southern Railway Company were delivered to the plaintiff at Savannah in exactly the same condition in which they were received. The red bay horse above referred to, which had been placed in the car at Newport, Tenn., was not in the car when it was received *See generally, 1 Rap. & Mack's Dig. 737 et seq. Susong v. Florida Cent. & P. R. Co in Savannah; and the chestnut mare, when received at Savannah, was in a damaged condition. The shipment was made under a special contract entered into in consideration of a reduced rate of freight, wherein it was agreed that the "owner and shipper is to load, transfer, and unload said stock, with the assistance of the company's agent or agents, at his own risk," and "that the owner and shipper, or his agent or agents in charge of stock, shall ride upon the freight train on which the stock is transported"; and the owner or shipper releases the carrier "from all injury, loss, and damage or depreciation which the animal or animals, or either of them, may suffer in consequence of either of them being weak, or escaping or injuring itself or themselves, or each other, * and from all other damages incidental to railroad transportation which shall not have been caused by the fraud or gross negligence of said railroad companies." Neither the plaintiff, who was the owner, nor any one representing him, accompanied the stock upon the freight train upon which they were carried. The jury being authorized, under the evidence, to find that the facts were as above stated, were these facts sufficient to justify a finding in favor of the defendant? It seems to us that the verdict in favor of the defendant can be justified, under the evidence, upon either one of two theories: First, that the loss of the animal which was not delivered at all, and the injury to the animal which was delivered in a damaged condition, both occurred before the car containing the horses which were delivered to the plaintiff was received by the defendant company; and, second, that the loss of the one animal and the injury to the other would probably not have occurred if the defendant had, in compliance with his contract, either accompanied the stock, or had had some one as his representative to accompany the same, on the train upon which his stock were transported. The Code provides that when there are several connecting railroads under different companies, and the goods are intended to be transported over more than one, each company is responsible only to its own terminus before delivery to the connecting railroad, and that "the last company which received the goods as 'in good order' shall be responsible to the consignee for any damage, open or concealed, done to the goods, and such companies shall settle among themselves the question of ultimate liability." Civ. Code, § 2298. If a railroad company receives from another railroad company goods to be transported, and receipts for them "as in good order," the company so receiving and receipting is, under the terms of this section, concluded by the receipt from setting up, as against the consignee, that the goods were in fact not in good order when received. If such company receives the goods without receipting for the same "as in good order," there is still a presumption that the goods were so received; but this presumption may be rebutted by showing that no receipt 3R RR-4 |