Kurn v. Daube
| Decision Date | 28 September 1937 |
| Docket Number | Case Number: 27452 |
| Citation | 1937 OK 527,73 P.2d 835,181 Okla. 345 |
| Parties | Kurn v. Westheimer & Daube |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
¶0 1. CARRIERS--Measure of Damages for Delay in Shipment of Livestock.
The damage to livestock for delay in shipment is the difference between the market value of livestock in the condition they were when delivered at destination and the market value in the condition they would have been in if the delay had not occurred.
2. SAME--Cattlemen Qualified to Testify as to Loss of Weight of Cattle and Resultant Decrease in market Value Caused by Negligent Delay in Shipment.
Where damages are claimed from a common carrier, on account of weight unnecessarily lost by cattle in transit, and on account of a decrease in the market value of the cattle when they reach their destination, occasioned by the negligent delay of the carrier in transporting the shipment, witnesses experienced in such matters may properly testify as to the loss of the weight of the cattle and as to the decrease of the market value of the cattle on account of such loss of weight.
3. APPEAL AND ERROR--Error may not Be Urged to Admission of Incmpetent Evidence Absent Proper Objections and Exceptions or Where Similar Evidence Admitted Without Objection.
Unless proper objections and exceptions are saved to the admission of incompetent evidence, or where evidence similar to that objected to is admitted without objection or is elicited on cross-examination, no error can be assigned to the admission of such evidence.
4. APPEAL AND ERROR-- Necessity for Exceptions--invited Error--Instruction on Appellant's Erronerous Theory of Damages--Verdict Sustained by Evidence.
An instruction given without exception saved thereto, on defendant's erroneous theory of the measure of damages, cannot be complained of by the defendant here, nor can such defendant urge that the verdict is contrary to the instructions when the verdict is not in excess of the damages shown by the evidence.
Appeal from District Court, Carter County; John B. Ogden, Judge.
Action by Westheimer & Daube, copartners, against J. M. Kurn and another, trustees of the St. Louis-San Francisco Railway Company, for damages inflicted to cattle shipped over the railway. Judgment for the plaintiffs, and the defendants appeal.Affirmed.
J. W. Jamison, of St. Louis, Mo., and Cruce, Satterfield & Grigsby and W. T. Stratton, all of Oklahoma City, for plaintiffs in error.
Sigler & Jackson, Joe B. Thompson, and Paul Sutton, all of Ardmore, for defendants in error.
¶1 The defendants in error, two cattlemen, brought this action against the plaintiffs in error as trustees of the St. Louis-San Francisco Railway Company for damages alleged to have been caused to cattle shipped over the railroad to Oklahoma City. The cattlemen allege that the railroad unnecessarily and negligently delayed loading the cattle, overcrowded the pens during the waiting period, and went farther and took longer in transit than necessary. As a consequence, it is asserted, the cattle lost much more in weight than if handled and shipped in ordinary course. The cattle were shipped to Oklahoma City to be prepared for market.
¶2 The evidence of the shippers, although disputed, was ample to support the charges of unnecessary delays and improper handling, and the consequent loss in weight of the cattle. But the evidence is challenged as being insufficient to show the resulting pecuniary damage. It is contended that, because the evidence showed that it was not the intention of the shippers to sell the cattle immediately, but to feed them for a period of time at Oklahoma City, the measure of damages would be the expense of reproducing the weight lost. The case of Colson v. Midland Valley R. R. Co., 113 Kan. 667, 215 P. 1004, is cited for this rule. But that measure, if sound, is not the one prevailing in Oklahoma. This court has held: "The damage to live stock for delay in shipment is the difference between the market value of live stock in the condition they were when delivered at destination and the market value in the condition they would have been in if the delay had not occurred." Davis v. Kelley, 96 Okl. 17, 219 P. 923; Chicago, R. I. & P. Ry. v. Haskell, 117 Okl. 185, 245 P. 858; Dickinson v. Seay, 71 Okl. 66, 175 P. 216.
¶3 Under the foregoing rule it is immaterial whether the cattle were to be sold immediately or kept for fattening. We therefore next inquire whether there was sufficient evidence of the damage under the market value rule.
¶4 Witness Jude Kingsberry testified that he was an experienced cattleman and that he "figured" the damage to the cattle would be around fifty pounds per head, which would be worth $5 per head. The objection made to this testimony was based on the ground that this was not the proper measure of damages, "these were not market cattle." Evidently counsel believed this testimony was establishing some sort of market value loss. There was no objection to the question and answer of the witness that in his opinion such treatment would damage the cattle around $5 per head.
¶5 Witness Tom Cardwell, manager for the plaintiffs, testified that he...
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Atchison, T. & SF Ry. Co. v. JARBOE LIVESTOCK COM'N CO.
...at destination, and the market value in the condition they would have been in if the delay had not occurred. See Kurn v. Westheimer & Daube, 181 Okl. 345, 73 P.2d 835. It also points to the Kansas rule that the measure of damages allowable in cases of this kind is the expense of reproducing......
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