T. P. Ry. Co. v. Sherrod , 99 Tex. 382 ( 1905 )

The defendants in error brought this suit against the plaintiff in error and the Fort Worth Denver Railway Company to recover damages for loss of some and injuries to others of certain cattle which were shipped by them from Wichita Falls to Fort Worth and thence over the road of the plaintiff in error to Stanton, Texas. Upon the trial the jury gave a verdict in favor of the Fort Worth Denver City Railway Company and against the Texas Pacific Railway Company, from which the latter appealed to the Court of Civil Appeals. The judgment having been affirmed by that court, this writ of error was sued out to reverse it.

The questions here presented require no extended statement either of the pleadings or the evidence.

The first assignment of error is that the court erred in overruling a special exception to the petition. To show the point we take the statement in support of the assignment from the plaintiff in error's original brief: "The plaintiff's petition shows that the cattle shipped consisted of bulls, cows, two-year-olds, yearlings, and calves, but does not show the number of each. That 100 head were killed or died from their injuries. There is no allegation as to the kind or class of cattle that died, except one Hereford cow and calf, not included in the 100 head above referred to. The allegation as to the value of the 100 head is that they would have been worth at Stanton, if properly shipped, $15.00 per head. The special exception referred to in the assignment was as follows: `Defendant specially excepts to said petition insofar as it seeks to recover damages for dead cattle and says the same is unsufficient in that it fails to state the number of cattle dead of each class and the value of each class.'" We think the assignment shows no error. The allegation that the cattle, if properly carried, would have been worth at Stanton (the place of destination) "if properly shipped, $15.00 per head," is equivalent to saying that each of them would have been worth $15.00. If such was the fact we see no reason why the plaintiff should specify how many of the cattle lost belonged to each class. (Missouri Pac. Ry. Co. v. Edwards, 78 Tex. 310 [78 Tex. 310].) The allegations were quite as specific in this case as in the case cited, in which the petition was held good against a similar exception.

The next assignment is to the action of the court in excluding certain testimony of one Wiley Wyatt, offered by the plaintiff in error. The following extract from the bill of exceptions shows the point: "The plaintiff introduced as a witness Wiley Wyatt, who testified that he just a few days before the cattle in controversy were shipped, sold to the plaintiff a part of the cattle in controversy and that they consisted of stock cattle and some bulls and that there were some young calves and that he sold them for about ten dollars per head, counting the calves, on three years' time. Thereupon upon cross-examination the counsel for the Texas Pac. Ry. Co., defendant, asked the witness this question: `Do you know the relative values of cows, yearlings and calves last year.' The plaintiff's counsel objected because the same was immaterial, and the court sustained the objection and refused to permit the witness to answer the question. The attorney for the defendant Texas Pac. Ry. Co. then stated to the court that he expected the said witness to answer the said question in the affirmative, and that he desired and expected to further show by the said witness that young calves were not worth more than one-third as much as cows and that yearlings were not worth more than half as much." If the plaintiff in error had offered to show by the witness the relative value of cows, calves and yearlings at Stanton, to which place the cattle were shipped, we think the testimony should have been admitted. So if the offer had been to show that the witness knew the market value generally throughout a large scope of country embracing Stanton, and that in general cows were worth more than calves and yearlings in such territory, we incline to think the testimony would have been material as tending to rebut the testimony of the plaintiffs that each class at Stanton were worth $15.00 per head. There is nothing in the bill of exceptions to show that the witness knew the market value of cattle at any place except at the initial point of the carriage, near which place he had sold defendants in error a part of the cattle. Presumably he was testifying as to his knowledge of the value of cattle there. For the reason that the plaintiff in error did not offer to prove that the witness knew the relative value of cattle of the different classes at Stanton or generally in some territory embracing that place, we think that he failed to connect the proposed testimony so as to make it material, and that therefore the court did not err in its ruling.

In reference to the complaints of the charge of court found in the plaintiff in error's other assignments, it is sufficient to say that the charge fully and correctly submitted to the jury the issues made by the pleadings and evidence; and that in our opinion the particular language in the charge of which complaint is made was in no manner calculated to mislead the jury to the prejudice of the plaintiff in error.

The judgments of the district court and of the Court of Civil Appeals are affirmed. Affirmed.