Opinion
No. 5390.
October 14, 1914. Rehearing Denied November 18, 1914.
Appeal from Hamilton County Court; J. L. Lewis, Judge.
Action by Joe E. Williams and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.
Marshall Ferguson, of Stephenville, for appellant. Eidson Eidson, of Hamilton, for appellees.
This suit was brought by appellee Williams against appellant and the Ft. Worth Rio Grande and the Gulf, Colorado Santa Fé Railway Companies, to recover damages alleged to have been sustained to 60 head of beef steers, shipped by appellee Williams on the 25th of January, 1913, over the lines of said railway companies from Hamilton, Tex., to Oklahoma City, Okla., on account of negligent delay en route. Each of said companies filed answers, denying generally and specially the negligence attributed to them; and the case, being tried before the court without a jury, resulted in a judgment in favor of appellee Williams against appellant for the sum of $347.40 and interest, and in favor of the other defendants, from which this appeal is prosecuted.
The only errors assigned are: First, that the court erred in overruling appellant's motion for continuance; and, second, that the judgment of the court is excessive. It appears from the evidence that the shipment left Hamilton on Saturday evening about 5 o'clock, reaching Ft. Worth about 6 the next morning, but was held there, without any apparent cause, until 12 o'clock Sunday night, reaching Oklahoma City Monday at midnight, being likewise delayed three hours at Gainesville and five hours at Purcell. The cattle were very much drawn and injured in marketable appearance, besides which they lost some 50 pounds per head in excess of the ordinary and natural depreciation in weight; and it appeared that the market on Monday was higher by 15 cents per hundred than it was on Tuesday, from all of which appellee suffered loss to the extent of the judgment.
Appellant contends that the court erred in overruling its motion for a continuance. The motion was not a statutory one, failing to show any diligence to obtain the testimony of the witnesses, for whose evidence the continuance was sought. See article 1918, vol. 2, Vernon's Sayles' Tex.Civ.Stat. 1914. Three of these witnesses were conductors on the lines of the defendants, and one was a station agent at Hamilton at the time the shipment was made, all of whom were nonresidents of the county at the time of the trial, and no effort was made to secure their depositions. The original petition was filed on the 19th of June, and the case was first tried on the 28th of November of the same year, and judgment rendered against defendants, which was set aside at their instance on the 5th of December; the court having told counsel for defendants, several days before granting same, that it would be granted. On December 5th, at the time the motion was granted, counsel was informed that the case would be set down for the next day. No effort was thereafter made to secure the attendance of either or any of said witnesses. Since the application was not a statutory one, its refusal was within the sound discretion of the trial court, and, unless the same was abused, it is not the subject of review by us. See Carver Bros. v. Merrett, 155 S.W. 633; Wauhop v. Sauvage's Heirs, 159 S.W. 185, and authorities there cited. We do not think any abuse of this discretion is shown. It is true that appellant recites in its motion that an amended petition, setting up a new and distinct cause of action, was filed on the day of trial, for which reason it asserts that it was entitled to a continuance; but the original petition is not brought up in the record, and the trial court, in an explanation to the bill, shows that the cause of action alluded to was in fact embraced within the original petition. Besides, it appears that counsel for appellee offered to permit defendant's counsel to introduce in evidence the stenographic report of the testimony of all of said witnesses, except one, taken on the former trial, but counsel did not take advantage of such offer; and subsequently counsel for appellee offered to introduce such report themselves, but, upon objection of appellant's counsel, said testimony was excluded. Besides this, the court, in its explanation, stated that it did not consider any new matter, and the judgment rendered was in fact for a few dollars less than the judgment on the former trial. This being the state of the record, we do not think there was any error in overruling appellant's motion for a continuance.
The remaining assignment, complaining that the verdict is excessive, is too general to be considered; but, waiving this point, the evidence, we think, is ample to sustain the judgment rendered.
Finding no error in the proceedings of the trial court, its judgment is affirmed.
Affirmed.