Missouri, K. T. Ry. Co. of Texas v. Rich , 51 Tex. Civ. App. 312 ( 1908 )

This appeal is from a judgment in favor of L. B. Rich against the Missouri, Kansas Texas Railway Company of Texas for damages to a shipment of livestock and a quantity of emigrants' household goods.

There was no error in overruling appellant's special exception addressed to appellee's petition because of its failure to separately allege the items of damage to his live stock by reason of the rough handling, long confinement in the cars, failure to feed and water, etc. In the nature of things the pleader could not definitely state the amount of damages due to each of these causes, and the authorities cited by appellant are not applicable to such a case.

Appellee's testimony that he received no consideration for executing the contract of shipment given in support of his plea of failure of consideration, was not wholly as to a question of law, but was rather a mixed question of fact and of law and there was no error in permitting it. Of course, if there was no consideration for the contract it would not be binding, whether there was a formal plea of fraud, duress, or mutual mistake, or not, and this answers appellant's third assignment.

Appellant's fourth assignment is not supported by the record, for the answer of appellee that he had sold his mules and harness for three hundred dollars appears to have been in reply to a question from appellant's codefendant and not from the appellee, as the assignment states, and we are not prepared to hold the same erroneous on cross-examination.

Over appellant's objection appellee testified: "I think the mule that had the hip sweeny was damaged in the sum of seventy-five dollars and the other one was damaged twenty-five dollars." The objection interposed was that the answer was "irrelevant, immaterial and not the proper measure of plaintiff's damages and not the proper way to prove same, if he had sustained any damages." As against these objections the court committed no error in admitting the testimony.

By proper bills of exception it is shown that the witness, T. J. Jeffries, who testified in behalf of appellee that he was acquainted with the market value of mules and horses, such as appellee's were, if uninjured, in Childress, Texas, and that there was no market value for such stock in the injured condition described by counsel, and after he had placed the value of appellee's mules in an uninjured condition at three hundred and fifty dollars, was then asked by appellee's counsel the following question: "What would the same mules with their legs badly swollen, skinned and bruised in places all over, drawn, shrunken, and one of them suffering with hip sweeny and both lame, have been worth on the market at Childress in October, 1906?" To this the witness replied: "As stated before, there was no market value at Childress in October, 1906, for animals of this class in the injured condition detailed by you, but they could not be sold for half as much as if uninjured." Counsel for appellant then asked the witness the following question: "If there was no market value for such animals as these in their injured condition and you think they could not have been sold for more than half as much as they could if uninjured, upon what do you base your judgment, and is it not a fact that the reason you say they could not be sold for more than half what they would sell for if uninjured, is because you do not know the extent of their injury, and if you knew they would soon recover from such injuries they could be sold for a great deal more than half?" Upon appellee's objections the witness was not permitted to answer this question. We have recently indicated in the case of Fort Worth Rio Grande Ry. Co. v. Word, that the measure of damages for injuries to a shipment of live stock not intended for immediate market was to be determined by the same rules as though the animals were to be sold on the market, but that in arriving at the amount of such damages, the subsequent history of the animals with respect to their recovering from the injuries was a proper subject of inquiry to aid the jury in determining the extent of the real injuries, and while the damages are to be fixed as of the date when the animals reached their destination, yet the rapidity with which they are shown to have recovered from their bruises and other injuries is a potent circumstance in determining the real as against the apparent damages sustained. In keeping with this principle appellant should have been permitted to thoroughly cross-examine the witness Jeffries to test the accuracy of his opinion, for it was only an opinion at best, that the animals in controversy had sustained injuries to the extent of one-half their value. For this error the judgment of the County Court must be reversed.

As indicated above, we hold against appellant as to its contention that the difference in the market value of appellee's animals in an injured and uninjured condition was not the measure of his recovery.

We are inclined also to hold that the court erred in his charge wherein he instructed the jury if they found for the plaintiff to return a verdict for his damages "not to exceed $480." The prayer of the petition was for seven hundred and fifty dollars upon this item, and if that sum had been named as the maximum limit of the recovery the reference perhaps would not have been reversible. It has several times been held to be improper for the court in his charge on the measure of damages or amount of recovery to make reference to the amount claimed in the plaintiff's petition. (Glasscock v. Shell, 57 Tex. 215 [57 Tex. 215]; Willis v. McNeill, 57 Tex. 465 [57 Tex. 465]; Galveston, H. S. A. Ry. Co. v. Kelley,26 S.W. 470; Texas Pac. Ry. Co. v. Huffman, 83 Tex. 286 [83 Tex. 286]; Texas N. O. Ry. Co. v. Carr, 42 S.W. 126.) On the other hand it has also been held that where the evidence supports the amount of the verdict and there is nothing to indicate that the jury was influenced by the charge, the error is not ground for reversal. See authorities cited in Texas N. O. Ry. Co. v. Carr,supra. In the present case much of the testimony was to the effect that appellee's animals would have been worth about one thousand dollars in an uninjured condition and that they were damaged to the extent of one-half their value. In this state of the evidence the trial court's charge that the verdict should not exceed the sum of four hundred and eighty dollars was particularly misleading, especially in view of the fact that the verdict actually returned was for that amount. We can not say that the error was harmless, but are inclined to the view that it improperly influenced the jury in reaching a verdict.

Appellant's requested charges were all correctly refused; the first because it improperly directed a verdict for the defendants if the jury were unable to determine from the testimony what amount of damages occurred on the line of the respective defendants; and the fourth, because it directed a verdict for the defendants, notwithstanding their negligence resulting in injury to appellee's stock, if the animals themselves had contributed to their injuries by their inherent vice, etc. There was no issue in the case of appellee's contributory negligence in placing vicious animals in the car together, and the mere fact that the animals may have bitten, kicked, or otherwise injured each other, would be no excuse for appellant's negligence.

In view of another trial, we call attention to appellant's special charge No. 7, which was given. This charge was clearly upon the weight of the evidence in that it directed the jury to adopt as their verdict the lowest estimate made by any of the witnesses of appellee's damages.

The judgment of the County Court as between appellant, the Missouri, Kansas Texas Railway Company of Texas and the appellee is reversed and remanded for another trial, but as to the Fort Worth Denver City Railway Company the judgment is not disturbed.

Reversed in part and affirmed in part.