Holt v. Lowden

• Decision Date: 26 April 1940
• Docket Number: No. 14086.,14086.
• Citation: 140 S.W.2d 318
• Parties: HOLT v. LOWDEN et al.
• Court: Texas Court of Appeals

140 S.W.2d 318

HOLT v. LOWDEN et al.

No. 14086.

Court of Civil Appeals of Texas. Fort Worth.

April 26, 1940.

Rehearing Denied May 24, 1940.

Appeal from County Court at Law No. 1, Tarrant County; David McGee, Judge.

Suit by Paul Holt against Frank O. Lowden and others, Trustees of the Chicago, Rock Island & Gulf Railway Company, for negligence in transporting certain horses. Judgment for defendants, and plaintiff appeals.

Affirmed.

C. A. Wright and Sol Gordon, both of Fort Worth, for appellant.

Walker, Smith & Shannon and Jenkins Garrett, all of Fort Worth, for appellees.

DUNKLIN, Chief Justice.

Paul Holt shipped by railroad, on a through bill of lading, 23 mares from Rosebud, Montana, to Fort Worth, Texas, and they were delivered at their destination on October 23, 1937, by the trustees of the Chicago, Rock Island & Gulf Ry. Co., one of the connecting carriers. This appeal is prosecuted by Holt from an adverse judgment rendered in his suit against those trustees for damages claimed by him to have resulted from negligence of the carriers in transportation, which caused the animals to sustain injuries that depreciated their market value in the sum of $667.50.

In answer to the first three special issues submitted to them, the jury found that the animals were in good condition when they started on the trip, and in an injured condition when delivered to the consignees in Fort Worth, and that by reason of the injuries they suffered in transit, their market value was depreciated in the sum of $230.

But in answer to the fourth special issue, they further found that the injuries so sustained by the animals "were caused solely as a result of the inherent vices and natural propensities of the animals."

On that verdict, judgment was rendered for the defendants.

There was no caretaker in charge of the animals on the trip, and no testimony was introduced to show any improper handling or explanation as to what caused the injuries. Appellant insists that the finding of the jury in answer to issue No. 4 was without sufficient support in the evidence.

Defendants introduced two Veterinarians as witnesses, Drs. L. H. Baker and W. C. Butler, both of whom inspected the animals after their arrival in Fort Worth. Dr. Baker has followed the occupation of Veterinarian for 25 years; was employed by the Western Weighing & Inspection Bureau for 12 years; examined the animals when unloaded in Fort Worth, and again three days later; he found some of the mares with a considerable portion of the bush of their tails plucked out; others with wounds in breast, legs, knees, hocks, etc., and from the character and location of those injuries it was his opinion they were caused by fighting and kicking of the animals among themselves; also that plucking of tails is one of the propensities of young animals that have been transported and of those that have not been transported, especially with range animals, as were this shipment. His testimony was based on his actual observations on other occasions. Dr. Butler's testimony was to a like effect with respect to the injuries testified to by Dr. Baker.

Such testimony was sufficient to support the findings of the jury in answer to Issue No. 4. Peveto v. Smith, Tex.Com. App., 133 S.W.2d 572; Wininger v. Ft. Worth & Denver City Ry. Co., 105 Tex. 56, 143 S.W. 1150; Underwood v. Security Life & Annuity Co., 108 Tex. 381, 194 S.W. 585; Traders & General Insurance Co. v. Durbin, TexCiv.App., 119 S.W.2d 595; McCarty v. Hogan, Tex.Civ.App., 121 S.W.2d 499, writ dismissed; Hulsey v. Patterson, Tex.Civ.App., 121 S.W.2d 509.

Nor is there merit in the further contention that their testimony was not admissible for lack of qualifications of those witnesses as experts. Liner v. United States Torpedo Co., Tex.Com.App., 12 S. W.2d 552; Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103; Texas Central Ry. Co. v. Burnett, 80 Tex. 536, 16 S.W. 320; Texas Employers Insurance Association v. Jimenez, Tex.Civ.App., 267 S.W. 752; Zurich General Accident & Liability Ins. Co. v. Kerr, Tex.Civ.App., 54 S.W.2d 349, writ refused; International & G. N. Ry. Co. v. McCullough, Tex.Civ.App., 118 S.W. 558; Crockett v. Troyk, Tex.Civ.App., 78 S.W.2d 1012, writ dismissed.

If the injuries suffered by the animals resulted solely...