The opinion
After Response of Supreme Court to Certified Questions.
The original opinion in this appeal was rendered March 28, 1916. The majority of the court reversed and remanded the cause as to appellant, but left undisturbed the judgment as to the Ft. Worth Denver City Railway Company. In the opinion of the majority it was held that there was error in the trial court's action in permitting plaintiff's counsel to ask him:
"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 the condition in which they should have arrived, handled with ordinary care and diligence ?"
To which plaintiff answered:
"I think it was anywhere from $20 to $25 difference."
The objection made by the defendant was that said question and answer called for and involved a conclusion of the witness which he was not qualified to state, and concerning a matter properly for the jury, and not for the witness, because same involved a mixed question of law and fact, and because there was no allegation to support it, and because it was incompetent, irrelevant, and immaterial. Chief Justice Conner dissented, holding that the question and answer mentioned was not subject to the objections made by the defendant. On motion for rehearing and to certify, we certified to the Supreme Court the question of the admissibility of the following questions and answers:
"(1) 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 the condition in which they should have arrived, handled with ordinary care and diligence? Answer: I think it was anywhere from twenty to twenty-five dollars difference.
"(2) What was the difference, if any, in the reasonable market value of the colts at the time they arrived, in the condition they were in, and in the condition in which they have arrived, handled with ordinary care and diligence? Answer: There was anywhere from fifteen to twenty dollars difference.
"(3) What would have been their (the two mares) reasonable market value if handled with ordinary care and diligence? Answer: Eighty-five dollars.
"(4) As to the colts, what would they have been worth if they had been handled with ordinary care and delivered in good condition? Answer: Thirty-five dollars.
"(5) What would the 14 mares have been worth upon their arrival here if they had been handled with ordinary care and had been delivered in good condition? Answer: Well, from $65 to $75.
"(6) What was the difference, if any, between the market value of the mares in the condition in which they did arrive and in the condition in which they should have arrived, handled with ordinary care and diligence? Answer: Well, there was a difference, I would judge, from $15 to $25."
On April 20, 1921, the Supreme Court answered the certified questions, and held that they were admissible. See 230 S.W. 396 . Hence, in obedience to the opinion of the Supreme Court, we set aside the judgment of the majority reversing and remanding the cause, and here overrule all assignments and affirm the Judgment below. *Page 631