151 S.W.2d 960 | Tex. App. | 1941
This suit was filed by H. P. Castleberry to recover actual and exemplary damages from W. A. Moody for the alleged wrongful and malicious shooting and injuring of plaintiff’s three horses. In substance, plaintiff alleged that his three horses got out of his pasture through a division fence owned by defendant and into defendant’s field where they were wilfully and maliciously shot with a shotgun by the defendant, severely and permanently injuring them. It is alleged that one of the horses lost an eye from the injury; that each of the horses sustained, in addition to the physical injuries, severe shock or scare which resulted in its becoming skittish, excitable and unruly. Plaintiff’s petition further fully describes the size and condition of his horses,
The case was submitted to a jury upon eighteen special issues, in answer to which the jury exonerated the defendant of malice in shooting the horses, but found'that he was guilty of actionable negligence in doing so. The jury found that the large bay horse which sustained the loss of his eye was of the reasonable cash market value of $70 prior to the shooting and $40 after the shooting; that the other large bay horse was of the reasonable cash market value of $80 prior to the shooting and $70 after the shooting; and that plaintiff had expended the sum of $2 for veterinary’s fee in treating the horses. Judgment was entered upon the verdict denying plaintiff recovery of exemplary damages and awarding him recovery against the defendant for actual damages in the -sum of $42. From an order of the court overruling his motion for new trial, defendant has, appealéd.
Appellant’s propositions 1, 2 and 3 complain of the action of the trial court in permitting H. P. Castleberry, Will Havens and Marcus Havens to testify as to the market value of the horses in question before and after the injury, over objection of the defendant that said witnesses were not properly qualified. It appears that plaintiff, H. P. Castleberry, Will and Marcus Havens were farmers living in the same community. The witness H. P. Castleberry, testifying for himself, described his. horses, their condition and good qualities, and
“Q. On and. prior to October 4, 1939, as a farmer and as owner of horses, have you had-experience and knowledge of the sale of horses in Delta County and in the North part of Delta County? A. Yes, sir.
“Q. Were you acquainted with the reasonable market value of horses in the North part of Delta County? A. Yes, sir.”
The witness Will Havens testified that he was acquainted with the horses in question, and:
“Q. * * * From your experience in knowing of and discussing horse sales in your part of the county, on or about the 4th day of October, 1939, were you acquainted with the reasonable market value of horses in your county? A. I had some idea about the price.”
■ Witness Marcus Havens testified that he was acquainted with the horses’ in question and:
“Q. On or about the 4th day of October 1939, did you know the reasonable market value of the 3 horses belonging to Herman Castleberry that you have described as knowing in that part of the county where you lived? A. Yes, sir.”
Each of the witnesses, after having so qualified, was then asked and permitted to give his opinion as to the reasonable market value of the horses in question before and after the injury. Appellant objected to the testimony, “on the ground that the witness was not qualified to answer the question and that no proper predicate was laid for the question, in that the witness had not stated that he knew the value.” Appellant made no request for and did not cross-examine the witnesses on the matter of their qualification. “In most cases, the statement of the witness that he knows the
Appellant’s fourth proposition complains of the action of the trial court in permitting plaintiff, over the objection of defendant, to testify that “he would not risk one of his children on one of the horses in question.” We agree that the testimony should have been excluded, but we think the error harmless. There is no complaint as to the verdict of the jury being excessive. It appears to be less in amount than the testimony would warrant, from which it is clear that appellant received no prejudicial effect from the immaterial testimony complained of.
Appellant’s fifth proposition complains of the alleged action of the trial court in refusing to submit to the jury defendant’s requested special issues Nos. 6 and 7, inquiring whether the injuries suffered by the two horses upon which damages were allowed were of a temporary nature. The record is not in condition to authorize us to consider this proposition. The alleged requested special issues appear in the record, but are not marked “Refused,” or signed by the judge trying the case as is required by that provision of R.C.S.192S, Article 2188, reading: “When a special instruction is requested and the provisions of the law have been complied with and the trial judge refuses the same, he shall indorse thereon ‘Refused,’ and sign the same officially.”
The decisions hold that refusal of a requested charge can not be reviewed, unless the refusal is authenticated by the official signature of the trial judge as required by the statute. Missouri, K. & T. Ry. v. Hurdle, Tex.Civ.App., 142 S.W. 992, writ refused; Farmers’ & Merchants’ State Bank v. Guffey, Tex.Civ.App., 255 S.W. 462; Medford v. Kimmey, Tex.Civ.App., 298 S.W. 140; Texas & P. Ry. v. Foster, Tex.Civ.App., 58 S.W.2d 557; Miller v. Fenner, Beane & Ungerleider, Tex.Civ.App., 89 S.W.2d 506; Texas Emp. Ins. Ass’n v. Hevolow, Tex.Civ.App., 136 S.W.2d 931.
The judgment of the trial court will be affirmed.