Galveston, H. & S. A. Ry. Co. v. Wessendorf

• Decision Date: 18 November 1896
• Citation: 39 S.W. 132
• Parties: GALVESTON, H. & S. A. RY. CO. v. WESSENDORF.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

39 S.W. 132

GALVESTON, H. & S. A. RY. CO. v. WESSENDORF.¹

Court of Civil Appeals of Texas.

November 18, 1896.

Appeal from Ft. Bend county court; John E. Linn, Judge.

Action by T. B. Wessendorf against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Peareson, McEachin & Peareson, for appellant. Oscar D. Kirkland, for appellee.

FLY, J.

This suit originated in the county court of Ft. Bend county, where appellee sought to recover $300 for a certain horse killed by appellant. The cause was tried before a jury, and a verdict in favor of appellee for $225 was returned. The horse was killed on the track of the railway company, at a place where it was fenced; but there were gates on either side of the track, which had been placed there for the accommodation of an adjoining landowner, and the gates were left open, and the horse had entered.

The first assignment presents as error the action of the court in refusing the request of appellant that the clerk should put the names of the four talesmen on separate slips of paper, place them in a box, and draw them out, placing the names on the list as drawn, and in permitting the clerk to write the names of the jurors on the list in the order he desired. The demand of appellant was supported by the statute, and should have been granted. It was the duty of the court to have required a strict compliance with the statute, which requires that the names of the jury be written on separate slips of paper, and placed in a box, and mixed well, and then drawn from the box, and written down, as drawn, on the lists given to the parties. Rev. St. 1895, arts. 3217, 3218, 3224. It does not follow, however, that, because the statutory privilege demanded by appellant was refused, a reversal on that ground should be the inevitable result, but the record should show that some injury may have been sustained by appellant by reason of the action of the court. Railway Co. v. Terrell, 69 Tex. 650, 7 S. W. 670. Had appellant exhausted all its peremptory challenges, there might be ground for complaint, but this was not done, and by this action appellant indicated that it did not object to the talesmen left on the jury. In none of the cases cited by appellant was the judgment of the lower court reversed on account of the irregularity in choosing the jury. The case of Railway Co. v. Keith, 74 Tex. 287, 11 S. W. 1117, is the only one cited that is directly in point; and, while the action of the court in refusing to have the jury chosen in strict compliance with the statute was condemned, the judgment was reversed not on that ground, but it was distinctly stated that the reversal was on account of an error in the charge.

Several witnesses were asked if there was a market value of the class of horses to which the horse of appellee belonged. This was objected to as calling for a conclusion of the witnesses. We see no force in the objection. Evidence on such subjects must necessarily be founded on the opinion of witnesses. There was no objection on the ground that the witnesses did not show that they had knowledge of the matters they were testifying about. They swore that there was no market value for the horse in Richmond, and proof of the value independent of the market was permissible.

It is urged that the court...