Davis v. Cochran
Decision Date | 27 May 1925 |
Docket Number | (No. 7370.) |
Citation | 275 S.W. 423 |
Parties | DAVIS, Federal Agent, v. COCHRAN. |
Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
Action by T. P. Cochran against James C. Davis, Federal Agent, for Gulf, Colorado & Santa Fé Railroad. Judgment for plaintiff, and defendant appeals. Reformed, and affirmed, as reformed, on rehearing.
Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Wren, of Fort Worth, for appellant.
Slay, Simon & Smith and Hugh B. Smith, all of Fort Worth, for appellee.
Appellee filed this suit in the Sixty-Seventh district court of Tarrant county against appellant, to recover $2,000 damages, on account of delay and improper handling accorded a shipment of hogs moving from Fort Worth, Tex., to Wichita, Kan., about January 25, 1919. Appellee alleged that, on account of unreasonable delay and improper handling of said shipment 43 of the hogs died, to his damage in the sum of $480.89, and that there was an excess shrinkage on said 43 head which died of 2,552 pounds, to his damage in the sum of $357.28, and that the difference in the market value of the remaining hogs at the time they were sold, and what their market value would have been if they had been safely transported within a reasonable length of time, was $183.73. Appellee also sued for excess feed charges en route, in the sum of $18, and excess feed charges after arriving at destination, in the sum of $112.50, and veterinary charges incurred at destination on account of the condition of the hogs, in the sum of $447.59. He alleged he was entitled to recover the difference between the reasonable market price of the hogs at the time of sale and their reasonable market value had they been safely transported with dispatch, together with other charges and expenses necessarily incurred in the proper treatment and care of said hogs. It is alleged that, if the shipment had been safely transported with reasonable dispatch, the hogs would have been of the reasonable market value of $4,020 at their destination, and that, if said hogs had any actual value at the time of their arrival at destination, same did not exceed the sum of $2,500.
Appellant answered, pleading that, if any of the hogs died after arrival at Wichita, or there was any depreciation of the value of such hogs, same was caused by such animals being afflicted with some contagious or infectious disease, and that the hogs in question were held in the stockyards and hog pens at North Fort Worth, Tex., before shipment, and were there exposed to infectious and contagious diseases peculiar to such animals, and that such disease was contracted by the hogs before they were loaded on the railroad cars at North Fort Worth; and further that, if such disease was contracted by the animals as a result of being exposed to same while in transit, the exposure of such hogs to such disease was not the result of any negligence or want of care on the part of appellant, but was the result of the negligence and want of care on the part of appellee in not making a request that the hogs in question be loaded into clean and disinfected railroad cars; appellant alleging in this connection that such shipment was billed by the appellee as being hogs for immediate slaughter, and that under such designation, under the rules and regulations in force and effect at the time, issued and promulgated by the Secretary of Agriculture of the United States, there was no obligation on the part of appellant to load the hogs in clean and disinfected cars, and that appellee well understood that, when the hogs were so billed, the shipment would not be loaded into clean and disinfected cars, unless a special request was made therefor, and that an extra charge would have been made for such loading; appellant further alleging that in so billing said hogs, with knowledge that same would be loaded into cars which had not been cleaned and disinfected, the plaintiff assumed the risk of such hogs becoming afflicted with such contagious and infectious disease while in transit.
In a first supplemental petition appellee alleged that, if the loss and damage was due to any of the matters set up in appellant's answer, such loss and damage was increased, aggravated, and proximately contributed to "by the unusual, unreasonable, and negligent delay of the defendants and their agents, servants, and employees, and the connecting carriers of said shipment, and the negligence on the part of the defendants, their agents, servants, employees, and connecting carriers of said hogs in otherwise transporting said animals."
The case was submitted to the jury on special issues, and on the answers of the jury to the special issues submitted the court rendered judgment in favor of the plaintiff and against the defendant in the sum of $1,693.52. The issues involved in this case are not complex, but simple. The cause was correctly submitted to the jury, upon 26 issues that covered every possible phase of the case, together with all necessary explanations of the law covering the same. Every issue was found by the jury in favor of appellee, and thereupon the court entered judgment. This judgment will have to be affirmed, unless it is made to appear by proper assignment that some error of law was committed by the trial court.
The first contention of appellant is that the undisputed testimony shows that at the time the hogs reached destination they were found to be afflicted with a disease known as swine plague, and the undisputed testimony shows, by an expert veterinarian who made the diagnosis, that the hogs had been so infected before being loaded on cars at Fort Worth, so the appellee, therefore, was not entitled to recover damages resulting from such diseased condition of his hogs.
This is the first of 15 propositions upon which appellant predicates his appeal, all in effect presenting the same question in a conglomerated mass to be picked out separately, which we will try to do by a general discussion touching upon each. Dr. Ross Moorman is the veterinarian who testified as an expert. He examined 308 live animals on January 29, 1919, and the same number on February 3, 1919, and he testified that he found the hogs diseased with swine plague. He goes into minute detail, giving a technical description of the disease, and stated that in his opinion such disease could not have resulted from any delay sustained during the shipment, or from any rough handling accorded to such shipment while in transit. It will be borne in mind that he never saw these hogs until they reached their destination. In his opinion their primary trouble was swine plague infection, which was undoubtedly acquired in passing through the Fort Worth stockyards without any prophylaxis, and that the disease could not have had its beginning or incipiency in transit and reached the state of development that he found after the time they were shipped from Fort Worth and the time he examined the hogs.
Appellant predicates the error upon the testimony of the expert witness Ross Moorman, the veterinarian, who inspected and examined the hogs at the point of destination. He stated that about 50 per cent. of the hogs appeared normal. S. P. Buckingham testified that he had had 14 years' experience in dealing with hogs, and was the salesman who handled the hogs at Wichita, Kan., and that the "hogs were more or less infected, and had the entire shipment driven back to the stockyards holding pens, where infected hogs are held for inspection and treatment; that he was having a good many orders, and went to the pens, and the first pen contained 31 head of stock pigs, sick with the thumps, and knew he could not sell them, and, looking through the other pens, he could see that they were in the same condition; that 43 hogs died subsequent to their arrival at Wichita, Kan.
There were only two expert veterinary surgeons who testified, to wit, Dr. Ross Moorman, who only saw the hogs at destination, never before, and treated them. Theoretically and by one process of reasoning, one hypothesis after another, he reached the conclusion that the hogs had "swine plague" before being shipped. The other expert in the employ of appellant was Dr. Crabb, who also never saw the hogs prior to their shipment. Each of these two doctors gave their opinion as to the cause of the sickness and death of the swine, based upon the facts presented to them and observed by them subsequent to the shipment. By expert testimony the writer is often reminded of what the late beloved Judge George Goldthwaite of the Houston bar said to an expert witness whom the judge stood aside without a single question. This disappointed the young doctor, who thought the old judge feared to examine him, and he had the temerity to inquire of the judge the reason for such unexpected conduct, and the judge replied:
"Young man, my observation has been that an expert generally swears for the one that brings him."
Dr. Crabb attributed the disease to a particular kind of pneumonia that attacked the hogs, and stated that the contagious pneumonia which takes place from five to eight days after exposure to develop cannot be cured by the injection of serum. It must be noticed that only 43 of the entire shipment of 319 hogs died. There is testimony of the inspector that shows, from the record which it was his duty to make, the condition of the hogs. The inspector testified as follows:
"The record about which I have testified is a record that is made for our benefit, to testify for the railroads."
And further that:
...
To continue reading
Request your trial-
Joy v. Peacock
...Truck Corp. v. Coonrod, and Gamer Paper Co. v. Tuscany, Tex.Civ.App., 264 S.W. at pages 129 and 132, respectively; also Davis v. Cochran, Tex.Civ.App., 275 S.W. 423, from the San Antonio Court. All of these opinions antedate Ewing v. Wm. L. Foley, 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627, ......
-
Meadolake Foods v. Estes
...v. Von Lienen, Tex.Civ.App., 149 S.W. 723, loc. cit. 726(9); Gulf C. & S. F. R. Co. v. Brock, Tex.Civ.App., 150 S.W. 488; Davis v. Cochran, Tex.Civ.App., 275 S.W. 423, loc cit. 427, (7, 8) (Also as to discretion of the trial Appellant assigns points of error in the court's action in overrul......
-
Hardware Mut. Cas. Co. v. Wesbrooks
... ... El Paso Electric Co., v. Gambrell, 292 S.W. 577 (Tex.Civ.App., El Paso 1927, writ dism'd); Davis v. Cochran, 275 S.W ... 423 (Tex.Civ.App., San Antonio 1925, no writ). His finding in that respect will not be disturbed in the absence of a clear ... ...