S.L.S. Ry. Co. v. Terry , 22 Tex. Civ. App. 176 ( 1899 )

This suit was instituted by Terry against the railway company to recover $500 for the killing of a jack. The trial resulted in a verdict and judgment for $250. The railway company has appealed.

1. The railway company applied for a continuance, its application was overruled by the court, and this action is assigned as error. The application for a continuance was based upon the absence of witness Bishop. The application set out the testimony which would be given by the witness, stated that it was material, and its materiality fully appeared. It set forth that due diligence had been used to procure the testimony, stating the acts of diligence, from which it was apparent that due diligence had been used. The terms of the statute, Acts 1897, p. 117 (1 Sayles' Civil Statutes, article 1278), were in all respects complied with, and the application was the first application for a continuance. The testimony expected to be given by the witness, as set out in the application, was to the effect that the witness knew the market value of the animal killed at the time it was killed, and that it did not exceed $150. The court, in explanation of its action in overruling the application, states that the witness was produced at a former trial, and failed to qualify himself to testify as to the market value of the animal. In our judgment this was not a sufficient ground for overruling the statutory application. The witness may have failed to properly qualify himself upon the former trial, but if he knew the market value of the animal at the time it was killed, as was stated in the application, no reason appears why he could not have testified to it. It is not stated that he is incompetent, but merely that he failed to properly qualify himself to testify as to the value of the animal. The value of the animal was an important issue in the case, and the defendant was entitled to the testimony of the witness. The refusal of the continuance was error for which the judgment must be reversed.

2. Appellant contended that the animal involved was put on the track of appellant's railroad, because its head was cut off between the eyes and ears, and no bruises on the body, and no impression on the ground showing that he had been dragged or struck. Over objection appellee was permitted to prove by the witness Coker that a few years since in Henderson County, where the wagon road crosses the railroad, he saw a horse on one side of the railroad and its head on the other. He did not see the animal struck, and don't know how it was killed, nor that the railroad killed it. Appellant saved a bill of exceptions to the introduction of this evidence. This evidence was not pertinent nor material, and should have been excluded.

3. It is insisted that the plaintiff was not entitled to recover the value of the animal, with 6 per cent interest from the date of the killing. As the proper measure of damage, the court authorized by its charge a recovery to the extent of the value of the animal at the time it was killed, with 6 per cent thereon from that date. This was held error in Railway v. Muldrow, 54 Tex. 233. This holding has been disapproved in Railway v. Dunman, 6 Texas Civil Appeals, 101; Railway v. Jones, 40 Southwestern Reporter, 745, and perhaps other cases. In accordance with the terms of a statute passed by the last Legislature we certified to the Supreme Court, in Railway v. Chambless, the very question here involved, so as to settle the conflict of decisions. In answer to our certified questions the Supreme Court has adhered to the holding in the Muldrow case. This contention of appellant is therefore well taken.

For the errors pointed out, the judgment is reversed and cause remanded.

Reversed and remanded.