Baker v. Nance Bros.

• Decision Date: 13 April 1927
• Docket Number: (No. 7078.)
• Citation: 294 S.W. 290
• Parties: BAKER v. NANCE BROS.
• Court: Texas Court of Appeals

294 S.W. 290

BAKER v. NANCE BROS.

(No. 7078.)

Court of Civil Appeals of Texas. Austin.

April 13, 1927.

Rehearing Denied May 4, 1927.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Action by Nance Bros. against James A. Baker, receiver of the International & Great Northern Railway, in which the International-Great Northern Railroad Company was substituted as party defendant. From a judgment against the substituted defendant, it appeals. Affirmed.

Guinn & McNeill, of San Antonio, and F. C. Davis and Marshall Eskridge, both of San Antonio, for appellant.

Will G. Barber and E. M. Cape, both of San Marcos, for appellees.

BAUGH, J.

This suit was brought by appellees against appellant for damages for negligent delay and rough handling of a shipment of two cars of beef cattle from Kyle, Tex., to the National Stockyards, East St. Louis, Ill., on June 26, 1920. The case was submitted to a jury on special issues. They found that the carriers were guilty of negligent delays causing damages to the cattle, and upon such findings and separate findings of his own the court rendered judgment for plaintiffs, appellees here. Subsequent to the filing of said suit, James A. Baker, receiver of the International & Great Northern Railway, was discharged, said company was reorganized under the name of the International-Great Northern Railroad Company, and judgment rendered against the new company. From said judgment this appeal is prosecuted.

Appellant's first assignment is overruled. The contention therein made is expressly determined against appellant by article 8604a, U. S. Compiled Statutes 1918.

Assignments 2 to 7 may be discussed together. They complain of the admission of testimony of five or six experienced cattlemen, shippers, and caretakers who had made or accompanied numerous shipments of cattle over this same route from Kyle, San Marcos, and New Braunfels to East St. Louis, covering periods of from 10 to 40 years. Appellant contends that the witnesses were not qualified because they had made no such shipments in June or July, 1920; that shipments in previous years were too remote to be admissible; and that only shipments made during 1920 would be competent to prove what was a usual and customary time to make such trip. It is unnecessary to set out the qualifications of these witnesses separately. Suffice it to say that all of them were experienced cattlemen and showed themselves familiar with this same run from their own experiences in shipping over it. None of them had shipped cattle over it in 1920, and some had not shipped any for four or five years prior to that time. All of them testified that the usual and customary time for making such trip was from 56 to 66 hours; that cattle leaving Kyle before noon on Friday would ordinarily reach East St. Louis early Monday morning in time for Monday's market; and those leaving Kyle on Saturday a. m. would make Tuesday's market in East St. Louis. The cattle in question left Kyle about noon Saturday, June 26th, arrived at East St. Louis about 3 p. m. on Wednesday, June 30th, and could not be sold until Thursday, July 1st.

This testimony was admissible. It is not of the same character as that admitted in H. & T. C. R. Co. v. Roberts, 101 Tex. 420, 108 S. W. 808, cited by appellant. That was clearly an instance where witness was called upon for an opinion on a mixed question of law and fact, involving directly the ultimate issue to be determined; i. e., what was a reasonable time to transport cattle with ordinary care? No such testimony is here involved. These witnesses were testifying to facts ascertained from experience. It is now well settled in Texas that such testimony is admissible. International & G. N. R. Co. v. Parke (Tex. Civ. App.) 169 S. W. 399; Hines v. Davis (Tex. Civ. App.) 225 S. W. 863. Nor was it necessary that such shipments by witnesses should have been made during 1920 to render their testimony admissible. The remoteness of their shipments from the one sued upon goes to the weight of their testimony and not to its admissibility. Atchison, T. & S. F. R. Co. v. Davidson, 60 Tex. Civ. App. 93, 127 S. W. 895 (writ ref.); Pecos & N. T. R. Co. v. Gray (Tex. Civ. App.) 145 S. W. 729; Pecos & N. T. R. Co. v. Dinwiddie (Tex. Civ. App.) 146 S. W. 280 (writ ref.).

If entirely different conditions had existed on said route in 1920 from those obtaining when witnesses made their shipments in prior years, that fact could have been shown, but the trial court qualified appellant's bill of exceptions to this testimony as follows:

"The foregoing bill of exception is approved with the following explanations and qualifications, that is: * * *

"(3) While the witness had not handled any shipment in the summer of 1920, there was no evidence showing any reason why it should have properly taken more time in 1920 to move cattle from Kyle to East St. Louis than it did in prior years. On the contrary, the undisputed evidence given by employees of defendant showed the route was the same, that the grades had been lowered, the roadbeds greatly improved, heavier engines brought into use, and no more difficulties to contend with than in antecedent years."

Appellant accepted and filed its bill without objection, as thus qualified, and is bound by such qualification. Payne & Joubert Machine & Foundry Co. v. Dilley (Tex. Civ. App.) 140 S. W. 496; Rhoades v. El Paso, etc., Ry. Co. (Tex. Civ. App.) 230 S. W. 481; San Antonio Traction Co. v. Settle, 104 Tex. 147, 135 S. W. 116.

Assignments 8 to 12 embody appellant's objections to the trial court's charge. The eighth assignment complains that "The court erred in overruling defendant's objections to the charge of the court, etc." There were eight in number, and the assignment does not specify upon which ones error is predicated. Obviously it is too general to require consideration. Nor is there any merit in appellant's objections to issues submitted to the jury on the staleness of the cattle, and their shrinkage in weight. These issues as submitted were as follows:

"Question No. 4. What, if any, was the shrinkage in weight, in pounds, per animal between the time when said cattle were in fact sold upon the market, and the time when they could have been sold upon the market, had ordinary care been used to transport them in a reasonable time?

"Question No. 5. What was the loss, if any, sustained by the plaintiffs, stated in cents per hundred pounds on the cattle when sold, caused by the staleness, if any, of the cattle accruing between the time that the cattle were, in fact, sold upon the market, and the time they could have been sold upon the market, if they had been transported with ordinary care and within a reasonable time?"

These questions were not on the weight of the testimony, nor do they, in our opinion, assume that shrinkage and staleness occurred. Even if they do, however, there was no error, because the uncontroverted testimony of the witnesses showed both staleness and shrinkage at the time of the sale and that same was due to the delay.

The thirteenth assignment complains of the refusal of the trial court to submit the following issue requested by appellant:

"What was the market value per hundred pounds of plaintiff's cattle at the time they were delivered at their destination?"

In the fourteenth and fifteenth assignments complaint is made of refusal...