Robb v. Gilmore

• Decision Date: 03 May 1957
• Docket Number: No. 15814,15814
• Citation: 302 S.W.2d 739
• Parties: A. L. ROBB, Appellant, v. Mary GILMORE, Individually, and as Next Friend for Len Gilmore, et al., Appellee.
• Court: Texas Court of Appeals

Page 739

302 S.W.2d 739

A. L. ROBB, Appellant, v. Mary GILMORE, Individually, and as Next Friend for Len Gilmore, et al., Appellee.

No. 15814.

Court of Civil Appeals of Texas, Fort Worth.

May 3, 1957.

Rehearing Denied June 7, 1957.

John McKelvey, Electra, Buillington, Humphrey, Humphrey & Fillmore, and John Murphy, Wichita Falls, for appellant.

Abner V. McCall, Waco, Mock & Spell, and C. Coit Mock, Wichita Falls, for appellee.

BOYD, Justice.

Appellee Mary Gilmore, individually, and as next friend for her minor children, Len and Darlene Gilmore, recovered judgment against appellant A. L. Robb for $57,290.25, as damages for the injuries and death of Ned Gilmore, husband of Mary Gilmore and father of the minor children; hence this appeal.

Deceased began working for appellant as a ranch hand on the morning of March 10, 1956, and was instructed by appellant's ranch foreman to ride a certain black mare to assist in rounding up cattle; about twenty minutes after deceased began riding the mare the animal fell and the fall caused injuries to deceased from which he died.

Appellee alleged that: appellant negligently furnished deceased the mare for the purpose of riding her to round up cattle; the mare was totally unfit for that purpose and appellant knew, or in the exercise of ordinary care should have known, that she was unfit for such use; deceased was not warned as to the nature and unfitness of the animal, and he received injuries while riding the animal of which he died; his death was due to the negligence of appellant; said mare was unfit because prior to the occasion in question she had been afflicted with a disease known as fistula, and as a result of said disease and an operation therefor, the muscles, ligaments, tendons and bones in her front legs, shoulders, withers, back and upper spine had been damaged, partially removed, stiffened, abscessed, weakened and covered with scar tissue to the extent that she had lost the full use of those portions of her body, causing her to have a tendency to stumble and fall as she did on the occasion in question; she had not been properly trained for the work she was furnished to do; she was strong-willed, stubborn, and had an inclination to return to the barn; she was unfit because her left front foot and leg had been severely lacerated, cut and torn prior to the occasion in question, leaving the muscles, tendons and ligaments in that area stiff and unwieldy, causing her to have a tendency to stumble and fall as she did on the occasion in question; she was unfit because of all and/or a combination of said physical and temperamental defects; appellant and his employees were negligent in furnishing said animal in her condition and in failing to warn deceased of such dangers and unfitness; and such acts of negligence were, collectively and separately, proximate causes of the injuries and death of Ned Gilmore.

Appellant denied that he was guilty of negligence and alleged that the animal was, so far as he knew, sound in body and limb, and trained for working cattle, and that he had no reason to anticipate that deceased would be injured in the performance of the customary duties of his employment; he further pleaded contributory negligence and assumed risk.

The jury found that: a prior fistula condition rendered the animal unfit for rounding up cattle; the furnishing of the mare in such unfit condition was negligence, and a proximate cause of the injuries and death of Ned Gilmore; the failure of appellant to warn deceased of the mare's unfitness was negligence, and a proximate cause; the mare had not been properly trained for the work she was furnished to do, and furnishing her to deceased without such proper training was negligence, but was not a proximate cause; that failure of appellant to warn deceased that the mare was not properly trained was negligence, but was not a proximate cause; the mare was not lame; she was stiff, and appellant or his foreman, either or both, should in the exercise of ordinary care have known of such stiffness; deceased did not assume the risk of injury by riding the mare; the mare had not recovered from the effects of fistula; appellant and his foreman, either or both, in the exercise of ordinary care, should have known that the mare had not recovered.

By his first group of points appellant assigns error to the action of the court in ordering him to produce the animal for examination, photographing, and testing by appellee. By such order the court directed appellant to deliver the mare to appellee for examination by a veterinarian of her choice, the details of such examination to include everything which in the opinion of the veterinarian was necessary to enable him to form an opinion of the physical condition of the animal. Appellant was ordered not to interfere with the examination.

The examination was made more than six months after the accident. A rider was selected by appellee, who rode the mare at the direction of the veterinarian, putting her 'through her paces' by walking, running, turning, and stopping her.

Appellant contends that the order was unauthorized under the rules of procedure and the constitution and laws of the state; that it allowed an illegal invasion of his property rights; that it deprived him of the possession, control, and use of his property without compensation; that the scope of the examination was not limited by the court; that it required the animal to perform physical feats with the only limitation being the imagination of the rider selected by appellee; that it compelled appellant to give evidence against himself; that there was no guarantee that appellant's property would be returned to him in the same condition it was in when taken; that good cause for such order was not shown; and that the court refused to require appellee to post bond to indemnify appellant should he suffer any loss as a result of such examination. It is appellant's further contention that any evidence obtained by appellee by such examination was inadmissible on the trial of the case.

After the accident in question, appellant had the animal examined by veterinarians and ridden by expert horsemen; upon being requested by appellee for the privilege of making an examination by a veterinarian of her choice, appellant refused.

We are of the opinion that reversible error is not shown by this group of points.

Evidence of the physical condition of the animal at the time of the accident was of vital importance. In his deposition appellant admitted that the mare had fistula in her left shoulder in 1950 and had undergone an operation for that disease. Appellee having alleged the animal was unfit for the purpose for which she was furnished, and that the disease and operation therefor had damaged her shoulder, muscles, ligaments, and tendons, causing her to lose the full use of her foreleg and to have a tendency to stumble, and that her left front foot and leg had been severely lacerated, which caused that area to be stiff and unwieldy, it was incumbent upon appellee to prove those allegations. It is not doubted that the evidence obtained by the examination was material to appellee's case and without it she would have been at a decided disadvantage.

'To 'establish justice' is one of the objects of all social organizations, * * * and, if, to determine the exact measure of the rights of parties, it is necessary that a temporary invasion of the possession of either for purposes of inspection be had, surely the lesser evil of a temporary invasion of one's possession should yleld to the higher good of establishing justice; * * *.' Montana Co. v. St. Louis Mining & Milling Co., 152 U.S. 160, 14 S.Ct. 506, 508, 38 L.Ed. 398. In Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389, the court upheld an order directing surveyors to go upon lands held by the defendant under an oil lease, and which adjoined the plaintiff's lease, and to use the defendant's machinery to make a survey in order to determine if the defendant had drilled into land below the plaintiff's surface. See, also, Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332, 51 A. 1075, 57 L.R.A. 949; 17 Am.Jur., p. 16, sec. 21, and p. 17, sec. 23; Wigmore on Evidence, Vol. VI, sec. 1862, pp. 479-487; De Vito v. New York Central Railroad Company, Sup., 146 N.Y.S.2d 545; Annotations, 33 A.L.R. at pages 16-24; 13 A.L.R.2d at pages 657-663; Rules 167 and 737, Texas Rules of Civil Procedure; Fed.Rules Civ.Proc. rule 34, 28 U.S.C.A.

It has been held that whether good cause is shown for such an order and the method and scope of the examination to be made thereunder are in large measure in the discretion of the trial court. Meier Glass Co. v. Anchor Hocking Glass Corp., D.C., 11 F.R.D. 487. We do not think the court's action in ordering the production of the animal for examination requires a reversal of the judgment.

We know of no rule which renders inadmissible the evidence obtained by the examination of the animal under the order of the court. The length of time elapsing between the accident and the examination might affect its weight, but not its admissibility.

Points of error are predicated on the overruling of appellant's motion for instructed verdict at the close of appellee's case, and his motion at the close of all the evidence. Having chosen to put on his case rather than to stand on the record when appellee rested, we think appellant waived the error, if any, in refusing the first motion. 41-B Tex.Jur., p. 213, sec. 184. Therefore, the only matter left for determination in this regard is his point that it was error to overrule his motion at the close of all the evidence.

A master's duty in furnishing a horse or other animate thing to a servant for doing the master's work stands upon the same basis as furnishing tools or other inanimate instrumentalities. Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846, 60 A.L.R. 448; George H. Hammond Co. v. Johnson, 38 Neb. 244, 56...