Wilkinson v. Gordon

• Decision Date: 21 December 1938
• Docket Number: No. 8780.,8780.
• Citation: 123 S.W.2d 961
• Parties: WILKINSON v. GORDON.
• Court: Texas Court of Appeals

Page 961

123 S.W.2d 961

WILKINSON v. GORDON.

No. 8780.

Court of Civil Appeals of Texas. Austin.

December 21, 1938.

Rehearing Denied January 18, 1939.

Appeal from Coleman County Court; John O. Harris, Judge.

Action by J. F. Gordon against C. C. Wilkinson for damages from alleged negligent threshing of wheat and barley. Judgment for plaintiff, and defendant appeals.

Affirmed.

Critz & Woodward, of Coleman, for appellant.

Baker & Baker, of Coleman, for appellee.

BLAIR, Justice.

Appellee, J. F. Gordon, sued appellant, C. C. Wilkinson, for damages alleged to have resulted from the negligent threshing of appellee's wheat and barley by appellant. Appellee alleged that appellant and his employees "negligently ran said threshing machine at a high and excessive rate of speed and overfed said machine while running at a high and excessive rate of speed, and negligently had and kept in said machine too many teeth in its concave, and by reason of said negligence * * * blew into the straw stack about 600 bushels of wheat * * * and about 100 bushels of barley"; and "that by reason of said negligence aforesaid, the said wheat and barley," which were blown in the stack, "was broken and chopped and unfit for use * * *."

After properly defining "negligence," the court submitted three special issues, which, together with the jury's answers, are as follows:

"Do you find and believe from a preponderance of the evidence, that defendant, C. C. Wilkinson, or his employes, negligently operated his threshing machine, in threshing plaintiff's wheat and barley crop, at the time alleged in plaintiff's petition?" Answer: "Yes."

"Do you find from a preponderance of the evidence that such negligence, if any, caused plaintiff's wheat and barley to be broken, chopped and blown into the straw stack, as alleged by plaintiff?" Answer: "Yes."

"How many bushels of wheat and how many bushels of barley, if any, were chopped and broken and blown into the straw stack, by reason of such negligence, if any, of the defendant?" Answer: "280 bushels of wheat; 40 bushels of barley."

No controversy arose as to the market value of the wheat and barley, nor as to the expenses per bushel of threshing and marketing same. The trial court deducted from the total market value of the wheat and barley found by the jury to have been broken and chopped and blown in the straw stack, the total expenses of threshing and marketing same, and thus found appellee's damages to be $255.40, and for which sum judgment was accordingly rendered for appellee; hence this appeal.

Appellant objected to Special Issue No. 1, "because same does not restrict the issue of negligence to the specific grounds of negligence alleged in plaintiff's petition"; and objected to Special Issue No. 3, "for the same reasons." Appellant asserts here that appellee plead three separate specific grounds of negligence, to-wit: "(1) Running the machine at a high and excessive rate of speed; (2) overfeeding said machine; and (3) having too many teeth in the concave." By his objections, appellant did not point out these specific grounds of negligence claimed to have been alleged by appellee, nor that the evidence raised such separate issues of negligence; and for that reason it is doubted if the objections and the asserted error based thereon can be considered. The objections did not apprise the court of any specific ground of negligence alleged or proved, but merely invited the court to examine the petition of appellee and discover what specific grounds of negligence appellant may have had in mind. Such objections were too indefinite and general to apprise the court of any specific ground of negligence which appellant thought was raised by pleadings and evidence. In any event, we regard the error, if error, as harmless.

The petition did not allege the three specific grounds of negligence claimed by appellant, but alleged only one ground of negligence based upon several concurring acts. That is, appellee merely alleged that appellant negligently overfed the threshing machine while operating it at a high rate of speed and with too many teeth in the concave, which caused the wheat and barley to be broken and chopped, and blown into the straw stack. On this ground of negligence several witnesses, experienced in operating the same or similar threshing machines, testified in substance that the concurrence of the acts of overfeeding while operating the machine at high speed and with too many teeth in the...