Morris v. Brown ( 1960 )

337 S.W.2d 759 (1960)

Earl MORRIS, Appellant,
v.
E. V. BROWN, Appellee.

No. 3552.

Court of Civil Appeals of Texas, Eastland.

June 17, 1960.

Joe B. Dibrell, Jr., Coleman, for appellant.

H. O. Woodward, Coleman, for appellee.

GRISSOM, Chief Justice.

Earl Morris sued E. V. Brown for damages alleged to have been caused by Brown's negligence while hauling plaintiff's cattle. The case was submitted to a jury which found (1) that the cattle delivered by Morris to Brown for transportation from Cleveland to the plaintiff's ranch in Coleman County, Texas, were not in "good sound condition" when they were delivered to Brown; (2) that Morris permitted the cattle that died to be loaded on Brown's truck when they were not in a condition to make the trip; (3) that Morris was negligence in permitting such cattle to be transported in that condition and (4) that such negligence was a proximate cause of the death of plaintiff's cattle. Judgment was rendered on said verdict for the defendant. Morris has appealed.

When appellant's points, his motion for new trial and his argument under said points are considered, they are simply to the effect that the court erred in not sustaining appellant's motion for judgment non obstante veredicto because such findings were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Appellant was not entitled to a judgment non obstante veredicto unless the facts were conclusively established in his favor. They were not. However, treating appellant's points as presenting the contention that the facts were found by the jury contrary to the overwhelming weight and preponderance of the evidence, in compliance with the rule applicable to such points prescribed by our Supreme Court in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, and Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793, we have considered and weighed all the evidence, and have concluded that the findings are not against overwhelming weight and preponderance of the evidence. The judgment, therefore, is affirmed.