169 S.W. 397
Tex. App.
1914

*1 & Gr.N. RY. CO. v. INTERNATIONAL conclusion last-named of the witness to either or find as items, law. analogy in this is no hence there Evidence, cases, Dec. [Ed. Note.—For other se e respect cases cited Dig. 2149-2185; Dig. 471.*] Cent. §§ § finding favor had been a there Appeal (§ 499*) Exceptions and Error — 1912, men- on the rents —Effect. items, as to the other made in the verdict tion exceptions A bill of to the admission testimony tion, pellant analogous, grounds objec- must would be state the the cases cited ap- considered, or it will not be specific inferred that and it grounds is limited to the stated. they against* finding him as to found Appeal cases, [Ed. Note.—For other see items; absolutely find- but there Error, 499.*] Dig. Dig. 2295-2298; Cent. §§ § Dec. issue, ing hence of these items indulged no inference can (§ 514*) Opinion 5. Evidence Evidence— — Expert Testimony. other; and, in our the equivalent Expert testimony ques- admissible on the finding to no whatever shipment tion whether a of live stock question in for which issue before the in the usual time. justified holding reason we feel cases, Evidence, [Ed. Note.—For other see responsive Dig. to the issues 2319-2323; Dig. Cent. §§ 514.*] § Dec. pleadings raised (§ 6. Carriers 227*) Carriage of Live —Injuries Stock —Actions for —Evidence. and therefore ad- embraced damages injuries In an action for question. to our view here shipment stock, of live evidence of intrin- It seems that we were mistaken sic value of the stock at the of destina- exceptions appellee’s general allegation demurrers tion admissible under a to their value at such where- there presented passed upon point; question This was occasioned our overlook- intrinsic value or market be shown transcript, contains an amended which being merely one of evidence. a recital Carriers, cases, [Ed. Note.—For other see Dig. 232, 953-956; Dig. Cent. §§ 227.*] to and overruled the court. We Dec. § Injury— insuf- intimation as to the (§ 229*) reiterate ficiency 7. Carriers Stock — —Live Damages. Measure of petition, but have no author- shipment In an action for ato ity anything to do more than to make stock, died, live some which the measure suggestion, appeal be dis- since the must damages is the value of the stock at the time delivered, missed. at which it should have been which value, if there is market at the of desti- The motion overruled. nation, value, will be measured the intrinsic value. cases, Carriers, [Ed. Note.—For other see Dig. Dig. 930, 963, 964; Cent. §§ § 229.*] Dec. & G. N. RY. INTERNATIONAL (No. 5342.) PARKE. (§ 78*) 8. Courts of Practice. —Rules Const, 5, 25, Under art. Appeals § (Court Rev. St. of Civil of Texas. Austin. 1523, giving 1911, April art. au- 15, Court 1914. On Motion for Re- thority establish rules of 1914.) not incon- hearing, 10, June sistent with the laws of the rules of the Appeal though (§ 907*) entitled to the force of and Error —Record— law, are void when in contravention of an ex- Waiver of Errors. press statute. exceptions, complaining A bill of prepare cases, Courts, [Ed. trial court failed to Note.—For other see read its Cent. Dig. 276-281; Dig. required §§ 78.*] Dec. § by statute, merely recited that certain 243*) Mandatory (§ 9. Statutes Provi — occurred, Relating sions —Law Procedure- stated the course of the is not defec- Power of Court. failing tive in to show that did not legislature Where has established a of the statute. mandatory procedure, is no room left for cases, Appeal [Ed. duty Note.—For other discretion, enforce the see and it is the of the courts to Error, Dig. 2911-2915, Cent. §§ written. 3673, 3674, 3676, 3678; Dig. Dec. § 907.*] cases, Statutes, Note.—For [Ed. see Dig. 324; Dig. § 243.*] Cent. Dec. § (§ 220*) 2. Trial —Instructions—Statute. Appeal 1970, 1971, (§ 263*) Rev. St. arts. and Error as amended — Review- Leg. (Vernon’s Sayles’ Harmless Acts 33d c. Error. § 3 1971), Civ. St. Where the trial court did not require read its accordance mandatory statute, are is re- versible and cannot be held harmless under cases, [Ed. Trial, Note.—For other see Cent. requiring x), Rule 62a Dig. 506; Dig. § 220.*] disregard nonprejudicial errors; for, though (§ exceptions reserved no 471*) Opinion 3. Evidence as to the Evidence— — such failure does not show that Conclusion Witness. harmless, witness testified that he knew the exceptions would come too late and time made with cattle disregarded. points shipment between two and that if a given time, took the the run was cases, [Ed. bad one Note.—For other see testimony merely Error, Dec. Dig. meant that 1516-1523, the run 1525-1532; Cent. §§ ] Dig. usual time and.did § 263.* topic Dig. * Forotter oases Dig. Key-No. see same Rep’r section NUMBER in Deo. & Am. Series & Indexes *2 n SOUTHWESTERN REPORTER red, the en nor defendant fendant Dabney the national of stock Will G. plaintiff quest rehearing. the quired same Judgment rough parties that ered fects pany. Wilhelm, before party manner the ing any quested San request argument had been charges retired' sel fendant delivered at no time at no time did time trial the the fendant read, San none Statutes ordinary way “Be it “(4) “(3) “(2) “(5) “(1) Appellant JENKINS, J. Action Fisher & were read deliver to argument jury following jury, and, court to Marcos, for opening argument, into in which to examine injured. of them of which At no time did At the conclusion The court’s The At handling plaintiff and made jury exception: him examination. Neither each or their Prom in which the heard special making appeals. known arguing same, & general Barber court to & by no time did examination. Judge. cattle over from nor for given, argument jury; finished, did counsel for either King, jury for either above any objection special charges assigns counsel for Fisher, Great to Webb. to the them the O. G. in due proceedings requested privilege appellee read to the was after the charges given any party The in the Hays County 8 cows argument attorneys argue jury charges charge up charges and counsel submit his Appellee numbered neither Reversed general thereto. argument of the jury by the court’s defendant for both closing argument. Parke Northern remembered order. their and, case, cows were charges jury of Houston, any party impaneled, and counsel for either party request R. E. presents the case shipment, the for There of the court then Austin, of the either died and charges be read to the but all counsel for and thereto at the time to the charge against the court after shipped jury prior to the for were submitted to and remanded general case, plaintiff and de- McKie, in the case were proceeded plaintiff counsel Railway Com- inspection, and at no had and evidence, party general 1971, Revised for to this suit re- court be Court; the _ receiving. charges plaintiff, party request of then mak- and were in fact and' returned charges charges giv- ease, to the request any counsel for road the others the delay and the value appellant. failure charge following respective case, upon the delivery. be deliv- prior pleading both Wilson, for de- making neither the ef- charge Inter- _ occur- J. party to be coun- cause head jury jury side and waived waived, the de- re- on so had ings by stating verdict and this bill would have ferred things required pellant had and son can be conceived lant had written ception which Were enacted cretionary ticles the first time called to the intendment, means that complained of; returned and the to, amine its may, of said articles. tions hereinafter the bill of such waiver on appellee, and those way by examination, deliver his trial filed and the court could court on the law of the er the deliver a same, tion for new trial herein the matters covered above shown in this ter of cial fuse to allow counsel a reasonable time to ex- trial of the cause until cedure in this “After the “After “(6) “(7) “(8) [2] We [1] exception might because counsel did not read jury discharged. states, Act of we think charges, presented. so, and the court did not at and submitted to the court certain The court did not at the restrictions referred to were set argument No above referred Counsel for defendant in this case succeeding article, did open read as charge open court unless the either most counsel for occurred,” which, charges special charges expressly charges charges was: general charge defendant or the argument cailse, assuredly everything that a parties expressly party either the verdict contends that follows: of the provided.” was at and p. following proceedings It is such been the given, request to' deliver a in that making charge 55, amended defendant before the or judge with reference to the waived the present objections why explained counsel defendant, correct the party proper the statute above re is that true, cause complaint this bill were then rendered subject to the manner of the until provisions were submitted the bill sets out all to were attention of the this cause.” the motion for new set out in the bill would have that same be by defendant, or to having to the occurred as to behalf, request any .to to the same suit, as contended for was held under setting that it was dis cause the objections the construction of this bill of ex show that think, by there was no to the restric- any time refuse to at which time among the case, jury, inspection delivering thereon, taken in irregularities preparation filing argument; had it not or demand provisions expressly jury. procedure aside the expressly any proceed writing. time re- signing thereto, already on of appel there- given, forth judge court mat- The rea fair way pro- spe- and aft- bill mo- ap ar the for or y. INTERNATIONAL & G. N. RT. ment for head. rendered. his cows favorable to pears induced the bly that could have been swer in the instant case is that no in 410, fact Tex. Civ. rors in plain ror of datory. must In ror in x),W. ment in the case.” In not inafter articles 1970 and islature to work a Tex. Co., denial reasonably apparent state 1970, 1971), which theretofore that it dence an ground “that the trial court committed an er evidence; appears (Vernon’s Sayles’ of an “The It does not It was Eames, resulted value of have necessary always it was held in this case. The that contended that express damaged from the record that no This procedure, a case provided.” was *3 changes charge. now to be present it reversed been different had it been submitted $740.50, intention from the record that such is the held, the rendition of an to counsel before have entitled calculated to charge. been the rule improperly optional testimony case will not be McWilliams v. Commissioners’ waiver 153 W. 394. rights to secure court shall be of the course of the killed, follow, however, subject in Sharman thus made in each, in his ease to the that under to that to render a but the bang us to 548; Loper for an error in party complaining. where is carried forward Perryman, Ann. Civ. St. Shinn, upon the Act of change mandatory, the extent testified that language by reading not of amounted to such a jury by applying to the to the restrictions here- Bonnell v. than Englefield go refused. Such correction of cause, jury gave it be reversed on the in the construction to this extent. undoubtedly parties.” instant appellant Rule part reversed practice improper judg We 1913, page nor that in the absence ought injury proba Newsome, contradicted, Robinson, opinion that a case 62a better think to a presenting remainder procedure. Prince, $1.50 that: him eight probably to have as was in (149 Carter unless would give judg more man- com it is only it is that nary pre Leg- 409, care, this per evi- an ap sions in er er 46 that, of of It be drawn sidered have ruled for testimony, his bill the which ed that many that such time. This Conclusion admission as indicated from San was a run The additional of stated that be a bad run. noon of one day objectionable Tex. son, from San No. signed.” admissible, not be the usual be dence their stitute The in timony be. The elements or less have quired what would o’clock m. the next carry such as the court them, elements that “The “In “Some The witness Hawkins testified that he But, [4, [3] part differentiated court said: question the witness. was not made was deduced, he knew what diligence, if it the cattle to their destination answering, necessarily results from the facts stat- and in years’ was; and ordinary diligence were him. He did not undertake to slow court erred in set conclusion as to what that time However, upon transportation S. W. another a “bad distance, necessary and the conclusion to be to the time Marcos to that the own particular out in of this run took grounds of it was a case were to be drawn must constitute Hawkins to first testimony does not run; from a consideration of questions of part, in would, in experience the admission and exclusion was and all the Roberts We resulted jury.” to 5 assigns statement, from noon one In the Roberts W, further run,” reason. The from that which have defendant’s witness, therefore, deduction from the facts upon speed in other shipment consuming testimony then to think time facts, he be determined 808; Ry. the usual and o’clock m. on ordinary things,” by opinions witnesses, bad or Webb. This from which the conclu- ordinary assignment he reasonably required determined for objection answered meant his facts was and a reasonable time. conclusions of fact Ry. reasonably which should be testify admission of says: law addressed to the Co. v. this knew opinion, based Case, supra, Go. words, shipping cattle; slow reasons trains, exercise what etc. admitted in evi- run, must be Co. v. Tomlin testimony assignment care, negligence drawn Roberts, a run Case, supra, objected intelligently, drawn from run is permitting in testimony, would con- upon but would and usual the cattle Beckham, with ordi- enter into was held was necessary all of the ordinary the next state part until the tes- himself would doubt- would testi- over was con- can say as- to. it 169 SOUTHWESTERN REPORTER mony, it would otherwise consideration, and lie is limited to to 'no grounds term [8-10] On a former By objection refer- there stated. judgment of the we affirmed No. 1 it ence will provisions of trial herein under the court 62a the the was that be seen that the x). In this Rule that we were this art. testimony for the conclusion “called error. The Constitution expert calling witness about a matter (Article 5, 25) also state testimony.” hind 1523, provide that: expert was admissible, Court shall by ap- contrary necessary insisted is not make and and enforce all establish” “procedure, not incon- “rules of” sistent ernment of said pellant in its herein. brief *4 gov- state, for the laws [6, Appellant assigns ad courts and the other value as to the intrinsic mission of of the cattle expedite dispatch of business” delivery, place said courts. at (a) That value is for the reasons: which the Rules petition; (b) plaintiff’s alleged evi make should be the force cat a market for shows that there was dence is void. in contravention of a statute rulé Laredo, this kind at tle of about Railway Railway Beasley (Sup.) 187; 203; v. 155 Co. 20 miles from Webb. Wilkinson, W. v. Co. Appellee alleged and the 379; both the intrinsic Bishop, 153 Schuette v. W. S. Such at Webb. value of the cattle market Galloway, 653; Co. Rowson v. W. upon an been admissible McKinney, 604; would' have evidence allegation v. 154 S. W. v. Rosa Conn place, their value mond, 76; State, Johnson v. 735; it was the People Cr. 93 W. Mc 103; Lynch, intrinsic Clellan, or intrinsic value. Market or 31 Cal. Main v. Kerr v. matter of evidence. 506; value is 658; Railway Co., Mo. Md. Purcell v. App. 406, Blair, 47 Tex. 105 W. Posey, 252, Am. La. State v. is the value of The measure of 525; Suckley (Va.) Rotchford, 12 Grat. place it at the Am. Dec. there be market been delivered. If pre- procedure, whether a rule of at such that nature byor scribed market value will control. there be merely directory, of the' discretion (cid:127)market, then the intrinsic value is the meas ought always to be exercised behalf of damages. Railway Chittim, 40 ure of justice; but, Legisla- substantial ture when Co. proce- mandatory has made a rule 47 W. discretion, dure, it is is no room left for It is true that evidence admissible as business enforce the of courts to vicinity the market value or at the law as it is written. There is market, if there be no market at the nearest an court to enforce mandate delivery; law, except but this testi- of to reverse a case mony purpose disobeyed. for the is admissible of show- such been mandate has Thus, said, intrinsic if a value. In herein we replaced destroyed by an “Appellant complain could have purchasing given.” opportunity an in a the same kind It did not have an nearby market, the intrinsic value would in the manner price not to exceed such article and “all not so scribed adjacent plus market, expense in such shall be considered made waived.” Articles 1970 and purchasing ing transport- in such market and It to it to the where the article should would have useless for assign delivered. Co. v. Wil- liams, Coggin, assign- Co. had ments appeal. as such App. 474, 44 Tex. Civ. Steam- not have been considered on could Weiss, Crews, 139 S. 1052. In the instant case For reason that the trial court it was shown comply preparation argument reference to the with that cattle the same character as his were bought Laredo, and sold in the market at price motion distant; miles of such granted, not shown. reversed, of cause is trial court herein appearing record, judg- No error remanded a new trial. granted. Judgment reversed, of the trial court ment is affirmed. Motion Affirmed. remanded.