Davis v. Simmons

• Decision Date: 15 March 1922
• Docket Number: (No. 1887.)
• Parties: DAVIS, Director General and Federal Agent, v. SIMMONS.
• Court: Texas Court of Appeals

240 S.W. 970

DAVIS, Director General and Federal Agent, v. SIMMONS.

(No. 1887.)

Court of Civil Appeals of Texas. Amarillo.

March 15, 1922.

Rehearing Denied May 3, 1922.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by R. E. Simmons against James Cox Davis, as Director General and Federal Agent. Judgment for the plaintiff, and defendant appeals. Affirmed.

Turner & Dooley, of Amarillo, and Thompson, Barwise, Wharton & Hiner, of Fort Worth, for appellant.

Hendricks & Mood and P. F. Sapp, all of Amarillo, for appellee.

HUFF, C. J.

Simmons sued for damage to a shipment of cattle over the Chicago, Rock Island & Gulf Railway Company and the Fort Worth & Denver City Railway Company, which roads were under the control of the government through its Director General of Railroads. It is alleged in effect that the cattle were shipped from Ramsdell, Wheeler county, Tex., to Channing, Tex., in a train of 28 cars, which arrived at Channing at 3:30 o'clock a. m., April 18, 1918, during a strong, biting, cold wind with snow flying; that the appellee, in the exercise of ordinary care, was ready to receive the cattle, but that appellant negligently unloaded 410 head of grown cattle and crowded them into insufficient pens, and negligently detached the engine from the remaining 16 cars of cattle and left them standing on the track for more than 12 hours after a reasonable time in which they should have been unloaded, and negligently gave appellee misinformation as to when an engine would arrive or could be obtained to assist in completing the unloading, thereby inducing the appellee and his men to remain at the depot with the cattle confined in the pen and cars until some time about 6 o'clock p. m., setting out the damages received by the cattle, 830 head of grown cattle, which were she cattle; more than 50 head of calves and one car of horses. The answer of appellant is to the effect that, if the unloading pens were inadequate as to capacity for holding the number of cattle in the train, the appellee knew of that fact and negligently failed to prepare to receive them at destination; that when the pens were filled the appellee negligently failed and refused to remove the cattle therefrom, and after waiting a reasonable time therefor the unloading was necessarily suspended until appellee removed the cattle, and if there was any loss it was through his own misconduct. The case was tried to a jury and submitted upon a general charge. In response thereto the jury assessed damages in the sum of $3,450, upon which judgment was entered, and from which this appeal is prosecuted.

The first, second, and third assignments are based upon the testimony of E. S. Collins and Hugh Exum, as set out in the bills of exception, as follows, with reference to Collins:

"Q. What effect, so far as the market — I mean so far as the value of the cattle is concerned — would it have upon them to keep some 400 or a little more, around that number, on the cars for some 12 or 14 hours, of this class of cattle, that you observed at that time? A. Well, I would think it would damage these cattle $6 or $7 a head to leave them on the cars.

"Q. Well, let me ask you this question: As to the cattle that were confined in the cars for some 12 or 14 hours, cattle of this class, and from your knowledge of the class of cattle and the cattle business, confining the injury to the cattle, now, and the damage to the cattle, Mr. Collins, solely on that account, what would you consider the difference in the market value of these cattle on account of that confinement in the cars for that length of time in that community and for about that length of time that year upon the market value per head?. A. Well, as I stated before, I think the cattle would be damaged in the market value of $7 per head.

"Q. What would you say relative to these cattle that were confined in these pens in a crowded condition, if the pens were loaded about to the limit, the effect upon the cattle and the market value under those conditions, basing it solely upon the confinement in the pens for that length of time? A. It would not hurt them much in the pens, although when you get 400 or 500 head of cattle in them they are pretty badly crowded, I would say about $4 or something like that."

As to Exum, the question and answer are as follows:

"Q. Now then, in your opinion, what was the difference in the market value of these cattle if there was a 12 or 14 hours' detention, about half of them in the pens and about half of them on the cars, at that time? A. Taking into consideration the character of the cattle, heavy cows, cows with little calves, springer cows, and the condition of the weather, and the time they got them out, one thing and another, I think it damaged those cattle from $5 to $7.50 per head."

The objection urged at the time was that the evidence sought called for an opinion, and that the same would not be proper legal testimony upon any proper or applicable measure of damages in the case.

The witness Collins had testified that he was an experienced cattleman, handling cattle, pasturing and shipping them, for about 30 years. He gave his opinion as to the effect on cattle standing in the cars and pens for 12 or 14 hours without movement, etc. He saw the cattle at the pens and described them. They were mother cows and springers. Standing in the cars injures cattle of this class more than dry cows or steers, and he gave the effect on cattle that such treatment would have upon the class in question. He saw the cattle at the pens and again that day after they were moved. Noticed them on the drive; it took two days to drive them eight miles. He saw the cattle every day while they were in his vacant pasture and saw the cattle through the summer and noted their recuperation and how they thrived; that on account of their condition their value was affected. He stated that the market value at the time they arrived at destination was about $85 per head. The statement of facts in this case sets out his testimony as follows:

"If about 400 head of cattle of this class were crowded in pens for about 12 or 14 hours, and about 400 head were crowded in cars for about 14 hours, as to the effect on their market value, cattle in that condition that these cattle were in in the spring, you understand, it would hurt them worse than it would fat cattle, naturally would, and I would consider that confinement of the cattle in the cars for that length of time would hurt them worse than that length of confinement in the pens. I think it would damage the cattle $6 or $7 a head to leave them on the cars. As to the cattle that were confined in the cars for 12 hours or 14 hours, cattle of this class, and from my knowledge of the class of cattle and the cattle business, confining the injury to the cattle and the damage to the cattle solely on that account, I think the cattle would be damaged in the market value of $6 or $7 per head. With respect to these cattle that were confined in the pens in a crowded condition, assuming the pens were loaded about to the limit, I would say regarding the effect upon the cattle and the market value of those conditions, basing it solely upon the confinement in the pens for that length of time, that it would not hurt them much in the pens, although those pens, when you get 400 or 500 head of cattle in them, are pretty badly crowded, I would say about $4 per head, or something like that."

Hugh Exum also qualified as an experienced cattleman and in shipping cattle. He saw the cattle at the pens and assisted in unloading them and described the effect the holding would have on that class of cattle:

"I have an idea about what Mr. Simmons' cattle were worth on the market there at Channing or in the community at the time they arrived there. There was a ready market for that class of cows at that time, in 1918. The market value of those cattle at that time for the weight of the cattle there at the time, as they were, was about $90 a head, I would say. Considering the detention of those cattle, part of them in the pens and part on the cars, after their arrival at Channing, I, in my opinion, would say that there was a difference in the market value of them by reason of such detention from 12 to 14 hours. I saw the bunch of cattle in question; was acquainted with them and know. I knew at that time the market for and relative to that kind and class of cattle. Likewise for that bunch of cows, just taking them as they come, springers, and also cows with calves; would say that the market value at that time and place for such cattle as were these about $90 per head. In my opinion 12 or 14 hours' detention in the pens and in the cars would affect these cattle and injure them."

Then follows the question and answer above set out to Exum.

It will be observed that the questions propounded to the witnesses were to state the difference in the market value of the cattle caused by the delay in unloading and holding them in the cars and in the pens. This was not, as we understand, merely a statement in general terms of damages per head, but was a statement as to the market value as affected by the injury. We can see no practical difference in stating the market value upon arrival of the cattle at destination as if it was $85 per head and after detention in the cars and pens, that cattle in the pens were of the market value of $80 and those in the cars at $77.50, and stating it as we think the testimony warrants, that those in the pens in market value were worth $5 less after the detention and those in the cars $7.50 less. This, we think, is the substantial effect of the testimony, to which objection is urged. We believe this case falls clearly within the holding of the Supreme Court in the case of Railway Co. v. Prunty, 230 S. W. 396. We especially refer to the above case and the opinions, both by the majority and minority of the Court of Civil...