Gulf, C. S. F. Ry. Co. v. Davis , 225 S.W. 773 ( 1920 )

The lameness of 2 of the mules was shown by the testimony of Honea not to be of such character as to make that fact material to any issue in this case. The only issue is as to height. Appellants do not contend to the contrary.

The form of the special requested instruction is such that the answer of the jury could not have been of benefit to appellants, unless it had been "No"; that is, that none of the animals therein referred to would have passed government inspection. If the evidence was so conclusive on this issue that reasonable minds could not have differed thereon, it was not error for the court to have refused to submit that issue to the jury.

I concede that, as a general rule, opinion evidence is not binding on a jury. This for the reason that the jury, as in all other instances, should weigh such evidence in the light of the whole evidence, including the character of the witnesses, their interest, if any, in the result of the trial, their opportunity to form a correct opinion, the doubt that may arise as to the correctness of such opinion from the very nature of the case, as, for instance, the prognosis by a physician, and the opinion of the jury, in the light of the facts upon which the witnesses base such opinion as tested by the observation or experience of the jury in similar cases. But I do not think there is or should be any hard and fast rule on this subject, as is assumed in the majority opinion to be the law.

When, as in the instant case, the height of mules is shown by the opinion of a number of reputable witnesses of long experience in the business of buying and selling mules, and especially in selling mules to the government, which experience enables them to judge within a fraction of an inch of the height of mules (Godby said within one-tenth of an inch), when they have all looked at the mules with the question of their height in mind, have all expressed the same opinion, and no contrary opinion has been given, and no description of the mules appears in the evidence, from which the jury might have concluded that they had formed a wrong opinion, and when none of the jury ever saw any of the mules. I think the opinions of such witnesses are of such conclusive nature that reasonable men could not differ as to what verdict should be rendered thereon.

If it be said that the testimony of Honea shows that these witnesses were mistaken as to 2 of these mules, such testimony, when taken as a whole and viewed in the light of the undisputed facts, does not weaken, but, on the contrary, strengthens, the opinion of the witnesses as to the remainder of the bunch of 15 or 16 that Honea examined. The government requirement was that lead mules should be from 15 hands to 15-3 high. These mules were bought as being in that class; all of the witnesses testified that, in their opinion, they were in that class. If so, some of them would be larger than others. This was the fact as to the bunch that Honea examined. He measured only the smaller mule — those that he had a doubt as to their not being 15 hands high. He had no doubt as to the others. It does not appear how many he measured. He found only 2 that "lacked a fraction of being 15 hands high." If he measured only those 2, it was because, in his opinion, there was no doubt as to any of the others being as much as 15 hands high. If he measured more than 2, he found all of those measured except 2 to be as much as 15 hands high.

But opinion evidence is not all that we have as to the height of these mules. Appellee testified positively as to the height of these mules. True, he was interested in the result of the suit, but this fact does not leave the case resting wholly upon opinion evidence. The honesty of appellee's belief that the mules were from 15 hands to 15-3 high is shown by the fact that he paid his money for them on that belief. It does not appear that he did not measure them. I concede that men may differ "the fraction of an inch" in measuring mules, especially if one is a little more careful than another in making such measurement. Also that this may be true if one measurement is made when the mules are fresh, as they were when appellee bought them, and the other measurement is made when the mules are tired and jaded, as they were when Honea measured them. Such is a fact with reference to the height of men. At any rate, Honea's testimony does not call in question the correctness of appellee's testimony, except as to two of them, but tends strongly to confirm the same.

Again, it will be observed that the requested instruction refers to horses and not to mules. Among the animals mentioned in special issue No. 7, to which the requested issue specifically referred, was one horse. Appellee testified, not as an opinion but as a fact, that this horse was a typical cavalry horse, and met all of the requirements.

Appellants did not request any special issue as to the mules, and therefore waived any error that the court may have committed in the submission of issues as to mules. Not having requested a finding as to the mules, it will be presumed that the court made such findings as to them as will support the judgment. R.S. art. 1985, and Railway Co. v. Finke, 190 S.W. 1145.

If appellants desired to have the jury pass on the issue raised by Honea's testimony as to 2 of the mules, they should have asked that the jury be required to find how many, if any, of the mules met the government requirement. This they did not do. In view of this fact, and also in view of the findings of the jury upon the issues submitted, which findings are supported by the uncontradicted evidence, except as to 2 of the mules, I do not think this case should be reversed, and appellee be put to the trouble and expense of another trial, without being given an opportunity to remit his damages as to 2 of the mules, especially when it is reasonably certain that the result of another trial would not be more favorable to appellants, except as to the 2 mules, than the judgment here appealed from. Rule 62a. I think appellants' sixth assignment that such remittitur be required should be sustained.

I am further constrained to dissent from the majority opinion herein, for the reason that the refusal of a charge submitting an issue is not reversible error, where the verdict rendered involves a finding against the complaining party on such issue. Clevenger v. Blount, 103 Tex. 27,122 S.W. 529; Epley v. O'Donnell, 152 S.W. 741; Penn v. Briscoe County,162 S.W. 916.

The jury must have understood from the pleadings, the evidence, and the issues submitted, as well doubtless from the argument of counsel that appellee was not entitled to any damages, unless at least some of the animals shipped by him would have passed government inspection. The seventh special issue was as to whether appellee had sold the animals in question to Evans, provided said stock were such as would pass inspection by the government's agents, and be received for government use. The eleventh special issue, submitted by the court, was as follows:

"What damage, if any, did plaintiff sustain by reason of the failure of said 29 head of mules and I horse to arrive at Brownwood, Tex., in time for said inspection? In this connection, you are instructed that the measure of plaintiff's damage, if any, would be the difference between the price C. V. Evans was to pay for said mules and horse and what they were worth on the market at Brownwood at the time of their arrival there."

To which the jury answered, "$1,400.00."

Even had the requested special issue included the mules as well as the horse, the jury answered the question as to whether any of said animals would have passed such inspection by their answer to special issue No. 11. As stated, if appellants desired the jury to answer as to some of the mules instead of as to all of them, as submitted in its requested charge No. 7a, it should have requested that such issue be submitted to the jury.

For the reason stated, I dissent from the majority opinion herein.