Shock v. Mrs. Ragsdale's Foods Co.

• Decision Date: 01 March 1950
• Docket Number: No. 12037,12037
• Citation: 228 S.W.2d 353
• Parties: SHOCK et al. v. MRS. RAGSDALE'S FOODS CO.
• Court: Texas Court of Appeals

Page 353

228 S.W.2d 353

SHOCK et al. v. MRS. RAGSDALE'S FOODS CO.

No. 12037.

Court of Civil Appeals of Texas, San Antonio.

March 1, 1950.

Rehearing Denied March 29, 1950.

Herman G. Nami, San Antonio, Joe Burkett, San Antonio, for appellants.

Lang, Byrd, Cross & Ladon, San Antonio, for appellee.

NORVELL, Justice.

This is an appeal from a judgment for $6,841.50, rendered upon special jury findings in favor of Jack N. Pitluk and T. A. Lambert, doing business as Mrs. Ragsdale's Foods Company, and against Fretwell Shock, individually, and Talley Transfer & Storage Company, a partnership composed of said Fretwell Shock and C. A. Talley.

The Talley Transfer and Storage Company is engaged in the business of operating a public warehouse for the storage of goods and commodities. The jury found that said company failed to deliver to appellee (the plaintiff below) forty-four barrels of cotton seed oil which had theretofore been stored with appellants and receipts issued therefor. The jury also found that each barrel contained 426 pounds of oil, and that the failure to deliver said oil to appellee upon demand was the result of gross neglect on the part of appellants' employees.

The trial judge found 'from the uncontradicted and undisputed evidence, and therefore as a matter of law, that the highest intermediate market value of the oil in question between the date of conversion and the date of filing suit in San Antonio, Bexar County, Texas, was Thirty-six and a half (.36 1/2c) cents per pound.'

Appellants present two points. They contend that the trial court erred in permitting hearsay testimony of T. A. Lambert with reference to the market price of the cotton seed oil involved, and that the court erred in permitting appellee's counsel 'to interrogate the witness C. A. Talley (one of the partners in the transfer and storage company) with reference to whether or not he was operating a bonded warehouse, because same insinuated and intimated to the jury that appellants were protected by a bond from any loss which they might incur.'

We think appellants' first contention must be overruled upon authority of the Supreme Court's decision in Cochran v. Wool Growers Central Storage Company, 140 Tex. 184, 166 S.W.2d 904, wherein it was held that a finding of market wool was supported by evidence, inasmuch as Cochran, the owner of the wool allegedly converted, testified that he was familiar with the market value of wool in San Angelo, Texas, and that said value was 22c per pound.

In the present case, T. A. Lambert, one of the partners of Mrs. Ragsdale's Foods Company, testified that the company manufactured salad dressing and that cotton seed oil was the principal ingredient thereof. The witness stated that he was acquainted with the reasonable market value of such oil in San Antonio, Texas. He said that he read the market quotations of commodities every morning, because he was 'interested in commodities, which included, of course, cotton oil'; that the 'National Provisioner,' a trade journal, and the Chicago Journal of Commerce carried recognized market quotations, and that Proctor and Gamble also put out a daily sheet of quotations covering cotton seed oil. Lambert also testified that the quotations contained in the papers or magazines were generally recognized and accepted by the trade throughout the United States, and that from such quotations, the market value of cotton seed oil in San Antonio could be ascertained. The witness first answered that the highest market value during the period from August 8th and December 24 of 1947 was 33 1/2c per pound. However, apparently, after refreshing his memory by looking over quotations contained in the National Provisioner and Chicago Journal of Commerce, he stated that the market value was 36 1/2c per pound, and this figure was accepted by the trial judge.

In our opinion,...