lines and arising out of the negligence, if | property may pass within the United States or any was shown, occurring on both lines. Appellant insists that in the bill of lading issued by it and the contract made with the shippers the undertaking on its part was to transport only over its own line and that its liability was expressly limited to its own line; therefore it was not liable for damages arising from the negligence of the connecting carrier. The question seems to be one of first impression, as no case, state or federal, has been cited or found involving the same point.

(239 S.W.)

The question here considered must, however, be determined by the proper interpretation and effect of the Cummins Amendment of 1915, quoted above, which was in force at the time the shipments were made. It is manifest that the principal purpose of and change effected by such act was to broaden the scope of the Carmack Amendment, and to extend its policy, from commerce passing from a point in one state to a point in another state so as to include commerce transported from or to a territory or the District of Columbia, or from another point of the United States to a point in an adjacent foreign country, and to prohibit agreements limiting liability.

We are not sure that we know the reasons inducing Congress to make this change in the law. It may have been because of the holding of the courts, such as in Houston E. & W. Tex. Ry. Co. v. Inman, 134 S. W. 275, a decision by the Court of Civil Appeals for the First District of Texas. In that case it was expressly held that the provisions of the Carmack Amendment did not extend to property received for transportation in a state of the federal Union for transportation from that state to a foreign country. But whatever the reason, it is plain that the change in policy adverted to was expressly enacted.

we all fully agree. It has been stated that the obvious leading purpose of the Amendment of March 4, 1915, was to extend the provisions of the act to commerce passing from a territory or the District of Columbia to a point in another state, territory, or District of Columbia, or from any point in the United States to a point in an adjacent foreign country, and to prohibit all agreements having the effect defined by that statute. Disregarding the punctuation, which we are certainly at liberty to do in order to ascertain the intent of the law, and viewing the matter from the history of the legislation and the four corners of the act, there is strong reason to believe that the language, "when transported on a through bill of lading," was intended to quality only the words in immediate association with it; that is to say, the case of property passing from a point in the United States to a point in an adjacent foreign country. In each case where this language is used, it is immediately preceded by the phrase, “within an adjacent foreign country." It is reasonable to conclude that Congress intended to provide a different rule in the instance of property received for transportation in a state or territory, or the District of Columbia, for transportation within an adjacent foreign country, than when the shipment was to be wholly within this country. Aside from any question of the constitutional power of Congress to prescribe an arbitrary rule, forbidding a common carrier to contract against liability, and making it responsible for the negligence of connecting carriers, where such carrier would have to look to the dubious remedy of reimbursement from foreign carriers, it is entirely reasonable to conclude that Congress did not deem it just to extend this rule to such cases, except when the initial carrier voluntarily chose to issue a through bill of lading. In such case it might well be presumed that the initial carrier had such contract arrangements with foreign carriers as would enable it to collect reimbursement where it had been made to pay for the default of the latter, or was satisfied to take the risk of such enforcement; but if compelled by the provisions of the act to issue such a contract, in any event, it would be unreasonable and unjust. But whether we are right in the reasons we have suggested, we are convinced that it was not the intention of Congress to so change the policy of the Carmack Amendment as to virtually place it within the power of carriers to nullify that policy. It is obvious that, if the interpretation claimed by appellant is correct, every carrer handling either purely interstate shipments, or shipments destined to a foreign country, could, by its own acts, restore the situation as it existed before the Carmack Amendment. By refusing to issue through bills of lading, and by issuing instead conHowever, there is another view upon which tracts for transportation over its own line

It is insisted that the qualifying words, "when transported on a through bill of lading," relate to each of the several specified kinds of transportation, and that the result of this language is to leave the initial carrier free to limit its liability to its own line, where it has not issued, or the property is not transported on, a through bill of lading. In view of the history of this legislation and of the policy of the Carmack Amendment, it is the opinion of the court that by the language in question, introduced for the first time in the Cummins Amendment, Congress intended only to recognize that all such shipments were through shipments, and must be considered as transportation on through bills of lading, no matter what form of contract was issued by the carriers or whether any at all was issued. In other words, that there was merely a recognition of what was already the necessary effect of the Carmack Amendment, and that the phrase, "through bill of lading," was but generally descriptive of the contracts contemplated, and made the duty of the initial carrier to issue. While inclined to this view, the writer is by no means certain that this is the proper intention to impute to Congress. It would seem that if such were the purpose there would really have been no necessity for the inclusion of this language, since the Carmack Amendment as interpreted by the Supreme Court had been given that effect. The phrase would seem more appropriately to be language intended as qualifying and restrictive of the prohibitions in the associated provisions.

"Gulf, Colorado & Santa Fé Railway Company and Connecting Carriers (Severally). By H. E. Everheart, its Agent."

only, to be delivered to connecting carriers, | shippers and were signed on behalf of the but limiting its liability to its own line, the carrier in the following language: common-law rule would be revived, and such carrier would be held to have assumed no obligation beyond the terms of such contract. This would effect such a radical change of policy, and would be such a backward step, that, in the absence of interpretations by the Supreme Court, we are unwilling to place such a construction upon the Cummins Amendment. Such an indirect repeal of the wholesome policy of the Carmack Amendment is not to be favored, in the absence of language more clearly indicating the purpose of Congress. As was said by Stone, Circuit Judge, in Chicago, M. & St. Paul Ry. Co. v. McCaull-Dinsmore Co., 260 Fed. 837, 171 C. C. A. 563:

*

*

*

While the contracts issued by the Missouri, Kansas & Texas Railway Company did not adopt or even specifically refer to the contracts issued by the initial carrier, they did provide that the connecting carrier would transport the cattle from Fort Worth, Tex., to Stringtown, Okl., "at the rate from San Angelo, Tex., to destination." This is a recognition that the shipments were through shipments from point of origin to destination, and also upon interstate rates for the entire transportation. Hence, what"The Cummins Amendment was not conever may be the proper interpretation of the cerned alone with preventing contracts already Cummins Amendment, we conclude that these illegal under the common law, but with prohib- shipments fall within the prohibitions of the iting all agreements having the effect defined by act, and that the clauses in the contracts that statute. Congress passed this act to rem-limiting liability are void. edy the defects in the Carmack Amendment as developed in the case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and intended thereby to fully and finally prevent all limitations of this character."

* *

Therefore we hold that the prohibitions of the Amendment extend to a shipment purely interstate in character, no matter what the form of the contract issued by the carrier may be, or whether any contract at all may be issued, when the property is received for transportation from a point in one state to a point in another.

While all the questions raised have not been discussed, they have been given careful consideration, and all assignments and propositions are overruled.

Finding no reversible error, the judgment will be affirmed.

On Rehearing.

In the argument upon motion for rehearing, counsel for appellant chiefly urge us to recede from our holding that the findings of the jury, upon the principal issues of negligence, are supported by evidence. A re

[7] We should not write at all upon rehearing, except for the request of counsel that we indicate the reasons for overruling their eleventh proposition, which relates to the refusal of the trial court to admit the written report of the veterinary, who made an examination of a large number of the dead and dying cattle, at the Fort Worth stockyards. This report was made to appellant alone, and was objected to because hearsay, made out of the presence of appellees, and was an attempt to bolster up the testimony of the witness.

[6] In any event, we are constrained to de-newed examination of the evidence convinces cide that the contracts here involved are, us that we were right in holding that the eviwithin the terms and meaning of the Cum- dence was conflicting, and the answers of the mins Amendment, to be deemed shipments on jury are binding upon us. through bills of lading. While it is true that the connecting carrier, Missouri, Kansas & Texas Railway Company, issued new and independent contracts at Fort Worth, under which the shipments moved to destination, radically differing in form and perhaps in substance from the initial contracts of appellant, it is nevertheless true that appellant received the shipments and contracts for their transportation on through rates, and with full knowledge that the cattle were destined for interstate shipment. It is stated in the contracts of appellant that it agreed to receive and transport the cattle "from San Angelo station to Forth Worth, Tex. (where shipment leaves our rails), consigned to G. E. Hines & Son, Stringtown, Okl." Furthermore, the contracts on their face show that the live stock was to be delivered to connecting carriers, and it is therein "expressly agreed that in case of through transportation this contract shall be for and inure to the benefit of any carrier constituting a part of a through line, and such carrier shall be liable to perform all the obligations of this contract." These contracts were signed by the

We are of the opinion that this ex parte report was clearly hearsay and incompetent evidence, and the court did not err in excluding it. Moreover, it is stated in the brief for appellees, without contradiction, that this witness testified fully as to results of his examination of the cattle and refreshed his memory from said written report.

We have carefully considered the motion, upon all points, and believe we have correctly decided the case. The motion is overruled.

Motion overruled.

Tex.)

EWING v. WM. L. FOLEY
(239 S.W.)

(Court of Civil Appeals of Texas. Galveston. Feb. 25, 1922. Rehearing Denied March 16, 1922.)

119-Es

I. Executors and administrators
tate held liable for damage done by independ-
ent executors and trustees in construction of
building for revenue-producing purposes.

Where independent executors and trustees serving without bond had absolute control and management of the entire estate of more than $2,000,000, under the will directing them to use the income for support of a hospital, the estate was liable for damage done in their construction of big office building erected for income producing purposes, in view of Rev. St. arts. 2005, 5492, 5493, and Const. art. 1, § 13. 2. Executors and administrators 119-Court finding executors without individual fault properly made judgment payable out of es

tate.

In action against executors and trustees for damage committed by them in the construction of office building for revenue producing purposes, the court in finding plaintiff entitled to damages and in finding the executors to have been without individual fault properly made amount of damages payable out of the estate.

3. Executors and administrators 440-Refusal to sustain plea in abatement of executors who ceased to act as such before time of trial held not error.

Where independent executors and trustees being sued for damages done during their construction of a building for income-producing purposes ceased to act as independent executors and resigned as trustees after commencement of the action, but before the time of the trial, and by amended petition they were counted against individually as well as in their representative capacity, and the new trustees chosen pending the suit were made parties to the action, the court's refusal to sustain the plea in abatement of the executors and trustees against whom the action was originally brought held not error.

4. Executors and administrators 33-Independent executors cannot resign without

court action.

Under Rev. St. arts. 3397-3403, independent executors cannot resign without some court ac

tion.

5. Evidence 354(17)-Books properly kept admissible to show loss of profits and diminished value of good will.

In action for loss of profits and diminished value of good will of plaintiff's business, plaintiff's books, which were shown to have been properly kept and were admitted by defendants' expert accountant, after they had been tendered to defendants for examination, to have been kept in the regular way, were properly admitted to show the loss of profits and diminished value of good will.

6. Evidence 474 (20)-Plaintiff suing for
loss of profits and diminished value of good
will held properly permitted to testify with
reference thereto.

In an action for loss of profits and dimin-
ished value of good will, plaintiff, who had
been engaged in the same character of business
at the same location for many years, and who
testified that from his experience he actually
knew the various percentages of profit in his
business and was able with reasonable cer-
tainty to tell what the the losses had been, and
that he knew the value of the trade-name and
reputation his business had built up prior to
to which the patronage had fallen off subse-
the injury complained of, as well as the extent
quent thereto, was properly permitted to tes-
tify as to such loss of profits and diminished
value of good will.
7. Appeal and error

1040(6)-Refusal to sustain plea of limitation held harmless in view of judgment.

In action against executors, failure to upagainst amended petition in which they were hold plea of limitation of the executors as sued individually, if error, was harmless, where the judgment was not against the executors personally, but against the estate.

tition against executors individually and offi8. Limitation of actions 124-Amended pecially held not to set up a cause of action different from that of original petition against executors in their official capacity.

Where original petition was filed against executors in their official capacity, amended petition against them individually, as well as officially, did not set up a new cause of action, as against plea of limitations.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Wm. L. Foley, Inc., against T. J. Ewing, Jr., and others, executors and trustees of the estate of George H. Hermann, Judgment for plaintiff, and dedeceased. fendants appeal. Reformed and affirmed. J. W. Lockett, of Houston, for appellants. Presley K. Ewing and Ewing Werlein, both of Houston, for appellee.

GRAVES, J. The executors and trustees of Geo. H. Hermann's estate, through their agents, while constructing its "Hermann Building" in the city of Houston next to the Foley Building, so excavated underneath the north wall of the Foley Building as to cause it to crack and collapse to such extent that it had to be demolished and replaced with The injury occurred on Sepa new wall. tember 7, 1916, and the replacement, which was done at the expense of the Hermann estate, was finished on December 24, 1916.

Wm. L. Foley, Inc., which during and for a long time prior to this period was doing business in the Foley Building, claiming that the injury-together with the directly attendant consequences during the time taken

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Writ of error granted May 3, 1922.

for reconstruction-had proximately caused | business was $17,500; (9) that plaintiff's it losses in depreciation of the value of the good will of its business, and in diminution of what would otherwise have been its profits, then prosecuted this suit for damages accordingly against Hermann's executors and trustees in their representative capacity, the three original executors and trustees of the estate being also counted against as individuals.