Lone Star Gas Co. v. Thomas
| Decision Date | 07 April 1961 |
| Docket Number | No. 16191,16191 |
| Citation | 345 S.W.2d 844 |
| Parties | LONE STAR GAS COMPANY, Appellant, v. W. A. THOMAS, Appellee. |
| Court | Texas Court of Appeals |
Warren J. Collins, Eugene D. Wilson, and Thomas M. Gromley, Dallas, for appellant.
Ben Hagman, Weatherford, for appellee.
W. A. Thomas sued Lone Star Gas Company for damages to his dairy cattle alleged to have been caused by their consumption of water containing sodium carbonate and sodium bicarbonate, which water had drained from Lone Star's premises and cracking plant onto plaintiff's premises, it being alleged that such chemicals poisoned and otherwise injured the cattle by interfering with their digestion of food and especially with digestion in the rumen, and causing the cattle to fail to reproduce, causing them to become unhealthy and indolent, to lose weight, and to decrease their milk production. There was a verdict for Thomas for $9,150, and judgment was rendered for that sum. Lone Star appeals.
Issues Nos. 5, 6, and 7, with the answers, were as follows:
By points of error appellant challenges the findings that the consumption of the water in question by the cattle caused the injuries complained of, its contention being that there was no competent evidence to support the finding, and that the finding was against the great weight and preponderance of the evidence; it challenges the action of the court in submitting such issue, and in submitting No. 6, because the issue does not limit the findings of interference with digestion to such as might have been caused by sodium carbonate and sodium bicarbonate, and because No. 6 inquired about the effect on the cattle as a group rather than on individual cows; in refusing to strike the testimony of Dr. Maddox, a veterinarian, and particularly his testimony that he thought the consumption of sodium carbonate and sodium bicarbonate would interfere with the rumination of cattle, on the ground that the witness was not shown to be qualified as an expert; in admitting the testimony of appellee, Riddle, and Harms, relating to sickness of cattle said to have drunk water from the same source as appellee's cattle, on the ground that there was no competent evidence that sodium carbonate or sodium bicarbonate could interfere with digestion in the rumen, and because said testimony was not limited to damage caused solely by interference with digestion in the rumen caused by sodium carbonate and sodium bicarbonate in the water; and in admitting testimony and submitting issues as to damage to the herd rather than damage to individual cows.
Chemical analyses of some samples of the water in question showed the sodium carbonate content to be from 121.1 to 455.7 milligrams per liter, and showed the sodium bicarbonate content to be from 720.9 to 969.3 milligrams per liter. Several chemists testified that milligrams per liter substantially equaled parts per million.
Dr. Maddox testified that he had been a practicing veterinarian in Wife County and adjoining counties since 1945, and that 90 per cent of his practice was with dairy cattle; he had done appellee's veterinary work for four years, and saw appellee's cattle quite often; in February or March of 1959 he noticed that appellee's cows were not in their usual good condition; sodium carbonate and sodium bicarbonate were alkaline, and in his opinion when a cow was fed these substances it would definitely make a change in the pH reaction of the rumen and would definitely hinder the ability of the bacteria to remain and function; as a result, the cow would have indigestion, lose weight, lose in milk production, and would be a very sick cow; normal rumen pH is from 6 to 7.8 on the pH scale; he had not conducted any experiments or tests on cattle to ascertain the effect on rumination of the ingestion of sodium carbonate or sodium bicarbonate, and only knew about that from what he had read in the books; he could not say how much sodium bicarbonate it would require to affect the pH factor except as expressed in parts per million in water; 400 parts per million would change the pH factor. In answer to a hypothetical question that if two cows which had been given sodium bicarbonate in water for a period of 24 days scoured, stood around, left feed in the trough, lost an average of 25 per cent milk production, and lost weight, and if two other cows which were not given sodium bicarbonate, but which had access to the same amount of feed and granzing, remained in good, healthy condition, what, in his opinion, caused the condition of the two cows first mentioned, Dr. Maddox said, 'I would say very...
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