Schaff v. Lynn
| Decision Date | 15 February 1922 |
| Docket Number | (No. 6696.) |
| Citation | 238 S.W. 1034 |
| Parties | SCHAFF v. LYNN et al. |
| Court | Texas Court of Appeals |
Appeal from Jim Wells County Court; R. R. Mullen, Judge.
Action by B. J. and R. Lynn, against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed in part, and reversed and remanded in part.
Kleberg, Stayton & North and John S. McCampbell, all of Corpus Christi, for appellant.
Perkins & Floyd, of Alice, and H. S. Bonham, of Beeville, for appellees.
On June 12, 1920, B. J. and R. Lynn shipped two carloads of cattle from San Diego to the Fort Worth market, over the lines of railway of the Texas Mexican Railway Company, the San Antonio & Aransas Pass Railway Company, and the Missouri, Kansas & Texas Railway Company of Texas, of which C. E. Schaff was the receiver. The Lynns sued the two companies first mentioned, and the receiver of the last-named company, for damages occasioned by delays and rough handling of the cattle, whereby one head is alleged to have been killed, and the balance lost in weight and declined in selling value. The cause was submitted upon special issues, and upon the answers thereto the court rendered judgment in favor of the two companies against plaintiffs, and in favor of plaintiffs against receiver Schaff for $507.96, which included interest from the day the cattle were sold on the market. The special issues, and the answers of the jury thereto, which are material here, were as follows:
In connection with the special issues the court instructed the jury that:
"You are further instructed that the measure of plaintiffs' damage, if any, in this case is the difference between the market value of their shipment of stock at the time and the condition in which it should have arrived at its destination, and the market value of said shipment of stock at the time when and the condition in which it did arrive at its destination."
Appellant complains of the action of the court in defining the measure of damages in the charge to the jury, contending that, where a case is submitted to the jury upon special issues, only questions of fact should be submitted. The measure of damages in any case is a matter of law, and not of fact, and should be determined by the court, and not by the jury. In view of the form in which the issue of damages was submitted to the jury, in special issues 6 and 9, it was, in our opinion, incumbent upon the court to define the measure of such damages, just as it was its duty to define ordinary care and negligence. They are all alike questions of law, on which it was the duty of the court to instruct the jury. If the charge was prejudicial, or inapplicable to the pleadings or evidence, as is in general terms urged by appellant, no specific objections on that account have been pointed out in such way as to present error. If it was subject to these objections, it was incumbent upon appellant to point out specifically in what respect it so offended. Nor does the charge, in our opinion, have the effect urged by appellant, of informing the jury what the effect of their answers would be, and is not subject to that specific objection. We do not mean here to expressly approve the form of special issues 6 and 9, to which appellant makes no specific objection in his brief. But we do say that, because of their form, it was proper for the court to define the measure of damages for the guidance of the jury in answering those issues. If the amount and value of shrinkage and decline in price of the cattle, and the value of the dead cow, had been ascertained by special issues separately submitted, as they probably should have been, then there would have been no occasion to define the measure of damages.
Appellees charged the defendants below with negligence in two particulars: First, in delaying the transportation and delivery; and, second, rough handling of the cattle. The cause was submitted upon special issues, and the question of negligence was submitted in one general question, as shown in special issue No. 4. Appellant Schaff requested the court to submit the following special issue:
"Did the defendants transport plaintiff's cattle to and deliver them at Fort Worth, Tex., as...
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