Texas & P. Ry. Co. v. Prunty , 1916 Tex. App. LEXIS 1360 ( 1916 )

In this case the evidence that appellee's horses were delivered to the appellant railway company for transportation in good condition is abundant. It also seems as well established in the evidence that when delivered at their destination they were in a badly injured condition, which was proximately caused by delays and rough handling, chargeable to appellant, and it will be observed in the opinion of the majority that the reversal of the judgment below in appellee's favor is grounded alone upon a single proposition, to wit, that the trial court committed prejudical error in permitting answer to the following question:

"What was the difference, if any, between the reasonable market value of the mares at the time and in the condition in which they did arrive and in the condition in which they should have arrived, handled with ordinary care and diligence ?"

To which the plaintiff answered:

"I think it was anywhere from $20 to $25 difference."

The conclusion of the majority that the question and answer were erroneous rests upon the further conclusion that the ruling of our Supreme Court in the case of H. T. C. Ry. Co. v. Roberts,101 Tex. 418, 108 S.W. 808, requires such a holding, but with this latter conclusion the writer most respectfully disagrees. Of the other cases cited by the majority, all of which are predicated upon the Roberts decision, the cases of Railway Co. v. Davis, 50 Tex. Civ. App. 74,109 S.W. 422, and Railway Co. v. Hamon, 173 S.W. 613, undoubtedly support the majority conclusion, and to these cases may be added T. P. Ry. Co. v. Jones, 58 Tex. Civ. App. 132, 124 S.W. 194, by this court in which the opinion was written by Mr. Justice Dunklin, and in which also the writer concurred.

Later, however, when the question again came before this court in the case of Railway Co. v. McIntyre Hampton, 152 S.W. 1105, the writer, upon further consideration, entered his dissent, as will be seen by a reference to that case, and he now again reiterates his dissent to the end that, should the parties so desire, the differences in opinion may be harmonized, and the question authoritatively determined by our Supreme Court. As it seems to the writer, the technical difficulties in the administration of the law are complex at the best, and he does not think they should be multiplied by unnecessary or unwarranted extensions of decided cases, and he has not been able to avoid the conviction that the ruling in the present case, and in the other Courts of Civil Appeals cases supporting it, is not warranted by the decision in the case of Railway Co. v. Roberts. In the Roberts Case, as will be seen by reference to the question which is set out in the majority opinion, the answer required of the witness was what was a "reasonable time within which to transport" the train of cattle between the points named? This of course was the very question upon which the plaintiff's case rested, and which it was necessary for the jury to determine. If the shipment was "unreasonable" under the circumstances the defendant was necessarily guilty of negligence, and the court, therefore, well said that the question and answer were objectionable as involving a mixed question of law and fact, which was for the jury's determination from all of the evidence. The question in the present case, however, and in the other Courts of Civil Appeals decisions referred to, as it seems to the writer, is quite different. Here the plaintiff was offered as an expert on the question of values, his qualification as such is not attacked, and the question propounded to him merely required an answer as to the difference, if any, in values. To that was the question alone addressed and to that alone was the answer as actually given by the witness directed. It is true that in a sense the interrogatory involved the question, in a collateral way, of how the cattle "should have arrived, handled with ordinary care and diligence," but, as stated, the witness was not requested to give his opinion upon that question. That was a question and an issue to which much evidence in the case was addressed, and which by separate clause of the court's charge was distinctly submitted to the jury. As embodied in the question it was purely hypothetical. In other words, for the purpose of the question the witness was asked to state what the value of the cattle would have been if it be assumed that they arrived in the condition they should have arrived, handled with ordinary care and diligence. It is easily inferable that a witness qualified to speak as to the state of the market at the point of destination could properly give his opinion on market values, even though, he, himself, had never made nor accompanied a cattle shipment, or had any knowledge that would enable him to detertine whether a shipment between given points was, or was not, within a reasonable time and with ordinary care. It is well settled in the authorities that counsel may get the opinion of a qualified witness upon a hypothetical question. See 2 Words and Phrases 2d Series, p. 926, citing Order of United Commercial Travelers of America v. Barnes,75 Kan. 720, 90 P. 293. See, also, 17 Cyc. p. 242. In the authority last cited, it is said:

"Assumption of facts in putting a question might almost be regarded as a test of whether a witness is being examined as an expert. The expert, properly so called, is asked what would be his judgment, upon all or any prescribed part of the facts, as to which evidence has been lawfully admitted by the court, assuming that they are true; provided that a sufficient number of facts are assumed to enable the witness to give an intelligent opinion. Having no facts in mind as the result of observation, it is in this way alone that the proper basis for a reasonable judgment can be furnished. The requirement that the question should be in a hypothetical form, stating facts of which there is some evidence in the case, continues throughout the examination of experts, so far as the attempt to elicit affirmative facts is concerned, and applies equally to cross-examination as to direct, to the redirect as to original case, and to experts introduced either by plaintiff or by defendant."

And in 1 Greenleaf on Evidence (15th Ed.) pp. 579, 580, in speaking of instances in which the opinions of witnesses are competent, it is said:

"And such opinions are admissible in evidence, though the witness founds them, not on his own personal observation, but on the case itself, as proved by other witnesses on the trial. But where scientific men are called as witnesses, they cannot give their opinions as to the general merits of the cause, but only their opinions upon the facts proved. And if the facts are doubtful, and remain to be found by the jury, it has been held improper to ask an expert who has heard the evidence what is his opinion upon the case on trial, though he may be asked his opinionupon a similar case, hypothetically stated." (Italics those of the writer.)

In the case of Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314, our Supreme Court in ruling that a witness could give his opinion on an issue of sanity vel non, said, among other things:

"Where the issue is one upon which the witness may properly state his opinion, he may do so notwithstanding his answer embraces the very issue on trial."

In the case of C., R. I. G. Ry. Co. v. Jones, 118 S.W. 759, by the Court of Civil Appeals for the Sixth District, and in which a writ of error was refused, the following question and answer were objected to as invading the province of the jury, viz.:

"What was the market value of these horses at that time if they had been transported properly, and had arrived there without any unnecessary delay?"

To which the witness answered:

"I think they were worth $100 per head, if they had arrived there in proper condition."

In disposing of the objection the court, among other things, stated:

"Market value is largely a matter of opinion, and it was not error to permit the witness to state his opinion as to the market value of the horses at La Junta had they arrived there in proper condition; it appearing that he was acquainted with the market value at that place of such horses. T. P. Ry. Co. v. Donovan, 86 Tex. 378, 25 S.W. 10. The answer did not ``invade the province of the jury.' It merely stated the opinion of the witness as to the market value of the horses at La Junta if they had arrived in ``proper condition.' Whether they did arrive there in that condition or not was left, so far as the answer of the witness was concerned, without suggestion one way or the other, to the jury."

In the case of G., C. S. F. Ry. Co. v. King, 174 S.W. 960, by the Court of Civil Appeals for the Fourth District, it was said, among other things:

"There was no error in permitting the witness to testify as to the market value of the horses in the condition they arrived and what it would have been if they had been delivered in the time and manner they should have been."

The question and answer of the witness in that case is not set out in the opinion, but the statement of the court clearly implies that the opinion of the witness on the question of value was sought upon the contingency assumed that the horses there involved had been delivered "in the time and manner they should have been."

In the case of K. C., M. O. Ry. Co. v. West, 149 S.W. 206, it was shown, as here, that the plaintiff was an experienced cattleman and familiar with the market value of cattle at the point of destination, and he was asked by his counsel the following question:

"Considering the condition of the cattle when they left Talpa, and the wear and tear incident to their trip of 100 miles, the ordinary wear and tear, the way they are handled with reasonable care, or in the ordinary way, we will say, was there a market for these cattle at Mary Neal and in that section?"

Objection was made to this question:

"On the ground that it assumed that said cattle should have gotten there in good condition, predicating the question on a supposition based on a mixed question of law and fact, for which reason it was improper."

The objection was overruled, and the witness, without answering, was thereupon asked: "What could they have been sold for at that time?" To which he answered: "Twenty-six dollars a head anyhow." In disposing of the question thus presented, the court said:

"In the first place, it appears that the witness did not answer the question propounded, to which objection was made; but, even if it be so considered, we think the question was proper. It did not call for his opinion upon any mixed question of law and fact, as was done in the case of H. T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808, relied upon by counsel for appellant, where the witness was asked, after stating his experience, what, in his opinion, was a reasonable time within which to transport a train of cattle from Llano to Fairfax, when they are transported with ordinary care and diligence. Here it appeared that the witness knew the exact condition of the cattle when they left Talpa. He was merely requested to state whether or not there was a market value for these cattle at Mary Neal, and what said market value would have been, if they had been handled in the usual or ordinary way in transit. (The question assuming that they were handled in the ordinary way, and taking into consideration the wear and tear incident to such a trip.) It seems to us that an experienced cattleman, who had frequently shipped cattle and who knew the condition of the cattle when shipped, and who was shown to have known their market value at destination, ought to he able to give his opinion as to what such market value would be, provided they had been handled with reasonable care or in the ordinary way, and that to allow such an answer would not infringe the rule laid down in the case last above cited."

The authorities last cited, in the judgment of the writer, are opposed to the conclusion of the majority, and present the better view. He, accordingly, as stated, enters his dissent, and gives it as his opinion that the judgment below should be affirmed.