Opinion
No. 919.
January 30, 1919. Rehearing Denied February 27, 1919.
Appeal from Presidio County Court; H. B. Young, Judge.
Action by E. C. Booth against the Galveston, Harrisburg San Antonio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Baker, Botts, Parker Garwood, of Houston, I. L. Martin, of Uvalde, W. Va.n Sickle, of Alpine, and Beall, Kemp Nagle and H. Potash, all of El Paso, for appellant.
Mead Metcalfe, of Marfa, for appellee.
Booth recovered a judgment against appellant for the value of four cows shipped from Ryan, Tex., to Ft. Worth. The shipment moved from Ryan to Flatonia over appellant's line. Ryan is near the station of Marfa.
Error is assigned to the admission in evidence of a letter from J. D. McCraney, claim agent of appellant, addressed to Geo. W. Saunders Commission Company, the consignee of the cattle. In this letter it was stated that at Sanderson, which is only a short distance from Marfa, the animals were in such bad condition that four of them were removed from the car dead. The letter declined payment of the claim. The letter was properly admitted. It was an admission by the claim agent of appellant showing that the four animals died in appellant's possession. It was not necessary that the letter be pleaded in order to make it admissible. A party is not required to plead his evidence. The signature of McCraney was sufficiently proven. Mr. Mead, a practicing attorney, testified that he had had a great deal of correspondence with the claim department of appellant, and in answer to his letters he always received letters from J. D. McCraney, and the signature on this letter is the same that was on the letters he received, that he knew that was his signature, and that McCraney is the claim agent of appellant. This was a sufficient authentication of the signature to admit the letter in evidence. Ullman, etc., v. Babcock, 63 Tex. 69; Sartor v. Bolinger, 59 Tex. 411; 1 Greenleaf on Evidence, § 577; 1 Wigmore on Evidence, § 702. It is within the general scope of the authority of a claim agent of a railway company to refuse or allow a claim against his principal. The record discloses that Geo. W. Saunders Commission Company was the consignee of the cattle, which sufficiently discloses its connection with the shipment, so as to make the letter of McCraney addressed to it admissible. These observations dispose of the various objections urged against the admissibility of the letter.
As to the first and third assignments, the evidence is sufficient to establish that the loss occurred on the line of appellant, and that the same was caused by its negligence. The letter of McCraney shows upon whose line the cows died. The testimony of Booth shows that the animals were strong enough to make the trip to Ft. Worth, and it appears they died before they reached Sanderson, which was a short distance from the point of shipment. His testimony also discloses that the car in which they were loaded was improperly bedded and not a safe car in which to transport cattle. This was sufficient to show prima facie that the loss was due to defendant's negligence, and, in the absence of any rebutting evidence, supports the finding that the loss resulted from negligence on defendant's part. Railway Co. v. Scott, 4 Tex. Civ. App. 76, 26 S.W. 239; Railway Co. v. Nowaski, 48 Tex. Civ. App. 144, 106 S.W. 437.
Since there is evidence to show that the loss occurred upon appellant's line, it follows that the fourth and fifth assignments are without merit.
Finding no error, the judgment is affirmed.