Texas & N. O. R. Co. v. Stumberg

• Decision Date: 17 March 1938
• Docket Number: No. 3648.,3648.
• Citation: 115 S.W.2d 1126
• Parties: TEXAS & N. O. R. CO. v. STUMBERG.
• Court: Texas Court of Appeals

115 S.W.2d 1126

TEXAS & N. O. R. CO. v. STUMBERG.

No. 3648.

Court of Civil Appeals of Texas. El Paso.

March 17, 1938.

Rehearing Denied April 7, 1938.

Appeal from Pecos County Court; C. E. Casebier, Judge.

Action by S. L. Stumberg against the Texas & New Orleans Railroad Company for damages because of the alleged failure of defendant to ship plaintiff's sheep promptly after loading, and by failing to properly care for them. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Baker, Botts, Andrews & Wharton, of Houston, Bruce W. Teagarden, of San Antonio, and Boggess, LaCrosse & Lowrey, of Del Rio, for appellant.

D. B. Hardeman and R. G. Hughes, both of San Angelo, for appellee.

NEALON, Chief Justice.

This is an appeal from the county court of Pecos county, in a case in which plaintiff laid his damages at $683.25, and recovered $450.90. The judgment was rendered upon special issues which the jury answered in a manner favorable to plaintiff. Plaintiff in his petition alleged that he was damaged by the failure of defendant to ship promptly after loading and by failure to properly water, feed, and care for a shipment of 2,217 mutton sheep, shipped by plaintiff from Longfellow, Tex., consigned to West Chicago, Ill.—defendant being the initial carrier. In reply to special issue No. 3 the jury found that sheep of the same class and character as plaintiff's sheep were of the reasonable market value of $2.70 per head in West Chicago on the 16th day of July, 1934 (the day upon which plaintiff's sheep arrived at their destination) that plaintiff's sheep were damaged or injured by their transportation from Longfellow, Tex., to West Chicago, Ill., so that when they arrived in West Chicago they were of the market value of only $2.50 per head; that such damages or injuries were proximately caused by defendant's negligence; and that had the sheep been transported with ordinary care and dispatch in an uninjured condition (taking into consideration the unavoidable injuries necessarily incident to the transportation of sheep by rail for such distance), their reasonable market value would have been $2.70 per head at West Chicago, Ill., on the day named.

Our comment will be brief. Reasons for brevity in the treatment of county court cases may be ascertained by reading our opinion in Tucker v. Higdon, 115 S.W.2d 973, this day decided, and the San Antonio court's opinion in Associated Indemnity Corporation v. Gatling, 75 S.W.2d 294.

There is no conflict in the findings in response to issues 3 and 10. It is evident that No. 3 refers to sheep of the class and character of plaintiff's sheep in good condition, since there is no qualification as to condition, and the reference is to sheep of that class and character, and not to the particular sheep shipped.

The court erroneously submitted issues 1 and 2 respecting three sheep that were dead upon their arrival in West Chicago, since there was no competent evidence to the effect that the sheep were dead. The evidence was hearsay, and the recovery should have been only for decreased value. However, as this would make a difference of only seven or eight dollars, it does not constitute reversible error. De minimis non curat lex. Brady v. Ranch Mining Co., 7 Cal.App. 182, 94 P. 85.

The court erred also in admitting plaintiff's opinion that the sheep arrived at West Chicago in poor condition. It was shown that he had no actual knowledge of their condition upon arrival. Upon cross-examination it was brought out...