Trahan v. Smith

• Decision Date: 14 March 1922
• Docket Number: (No. 757.)
• Citation: Trahan v. Smith, 239 S.W. 345 (Tex. App. 1922)
• Parties: TRAHAN v. SMITH et al.
• Court: Texas Court of Appeals

239 S.W. 345

TRAHAN v. SMITH et al.

(No. 757.)

Court of Civil Appeals of Texas. Beaumont.

March 14, 1922.

Appeal from Liberty County Court; Sam Houston Cain, Judge.

Action by Louise Smith and another against Joe Trahan. Judgment for plaintiffs in the county court on appeal from a justice of the peace, and defendant appeals. Affirmed.

J. F. Dabney, of Houston, and W. T. Norman, of Liberty, for appellant.

C. H. Cain and P. C. Matthews, both of Liberty, for appellees.

O'QUINN, J.

This suit originated in the justice court of precinct No. 1, Liberty county, Tex. Louise Smith, joined by her husband, Calvin Smith, sued Joe Trahan for the value of one brood sow alleged to be worth $60, and the further sum of $50 as exemplary damages for the wrongful and malicious killing of said sow by the "defendant's boys," who, as his agents, servants, and employés, were alleged to have "killed said sow by beating and striking her, and having the dogs bite, tear, and injure said sow in such manner that she died within a few minutes from the effect thereof."

From a judgment in favor of plaintiffs for $60, the value of the sow, defendant appealed to the county court of said county, where, upon a trial before a jury upon special issues, verdict and judgment was rendered in favor of plaintiffs for $60, and, a motion for a new trial having been overruled, defendant appeals.

Appellant's first proposition is:

"The court erred in its charge to the jury in not telling the jury which of appellant's boys were sought to be made the agents of appellant in killing the hog, and for such reason the charge was uncertain, as complained of in appellant's first assignment of error."

This assignment is overruled. Appellant in his answer pleaded general demurrer and general denial. No special exception was leveled at plaintiffs' statement of their cause of action, nor was any objection made to the introduction of any evidence offered by plaintiffs on that issue, nor was any special charge requested by defendant covering the issue suggested. The only objection made by defendant to the matter, as complained, is in defendant's exception filed to the charge of the court, and is:

"Defendant excepts to that part of the court's charge in which the first special issue is submitted and designated as question No. 1, because it does not specify the two boys claimed by plaintiff to be the ones who caused the death of the hog, and is therefore uncertain and leaves the jury to select from the other boys of the defendant any that they might believe he told to dog the hogs."

If the court's charge was defective in the particular complained, for appellant to take advantage of this objection to the charge, he should have prepared a proper special charge and asked the court to give same, which he did not do. Benham v. Tipton (Tex. Civ. App.) 181 S. W. 510; Traction Co. v. Bradshaw (Tex. Civ. App.) 185 S. W. 951; McCarthy v. Blackwell (Tex. Civ. App.) 162 S. W. 1163.

Appellant's second proposition is that the court erred in overruling his exception to the court's charge, wherein special issue No. 3 was submitted, directing the jury to find the market value of the sow alleged to have been killed, insisting that the issue of market value was not raised by the evidence. This assignment is overruled. Calvin Smith testified:

"I know the hog that was killed. It would weigh about 250 pounds. I know the price of hogs like that one that was killed, and a brood sow of her size and kind was reasonably worth $60. I was offered $60 for her not long before she was killed."

Felix Trahan testified:

"I know the hog that Louise Smith lost and claims Joe Trahan's dogs killed. It was a gray Poland China hog and weighed about 200 pounds. I had it to keep and raise pigs on shares, and when she did not come home on Thursday I went out to look for her the next day. I found her dead in Joe Trahan's field, and I went up to Joe Trahan's house through his yard and talked to his daughter about the hog being dead. I have been engaged in raising hogs for a number of years, and I know the price for which they have been selling and were worth at that time. A brood sow like her was reasonably worth $60."

This evidence plainly shows that the witnesses were acquainted with the value of hogs such as the one here in question in that...