Davis v. Pittman-Harrison Co.

249 S.W. 889, 1923 Tex. App. LEXIS 718

• Court: Court of Appeals of Texas
• Decided: March 22, 1923
• Docket: No. 2718.
• Status: Published

Opinion

WILLSON, O. J.

(after stating the facts as above). It appears from a bill of exceptions in' the record that after the witness Scott, appellee’s traffic manager, had testified on its behalf that he had worked for appellee over nine years and “had experience with ears shipped from Amarillo,” he was permitted to testify, over appellant’s objection on the ground that it was an opinion and conclusion of the witness on a question of fact to be passed on by the jury, that he (the witness) “considered” five or six days to be a reasonable time in which to transport a car from Amarillo by Fort Worth to Sherman over the Fort Worth & Denver and St. Louis, San Francisco & Texas Railways in June and July, 1919. Appellant insists that the trial court erred when he overruled the objection and admitted the testimony, and cites Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, and Railway Co. v. Prunty, 111 Tex. 162, 230 S. W. 396, decided by the Supreme Court, and several cases decided by Courts of Civil Appeals, as authorities supporting his contention. Combating appellant’s view, appel-lee insists it is not supported by either the Roberts or the Prunty Case, and cites decisions by Courts of Civil Appeals as holding to the contrary thereof. We have examined the cases relied on by the parties, respectively, and conclude that appellant’s contention must be sustained. The plaintiff in the Roberts Case, as here, sought a recovery of damages for delay in the transportation of a shipment, and it was held to be error to permit a witness to testify as to what was a reasonable time, the carrier using ordinary care and diligence, in which to transport same to its destination. The ground of the decision was that the testimony was the opinion of the witness, “in part upon questions of law addressed, to the court, and in part upon conclusions of fact to be drawn by the jury.” Appellee’s view seems to be that the ruling was made because it appeared that the opinion of the witness as to what was a “reasonable time” was based on his opinion as to what constituted “ordinary care and diligence.” It is urged that in the instant case the opinion of the witness Scott as to what' constituted a “reasonable time” was disassociated from any opinion he may have had as to what would have constituted “ordinary care and diligence,” and should be construed as merely his opinion as to what was the “usual” or “customary time.” We do not think the contention is tenable, nor that it is supported by the cases appellee cites (Rexroth v. Holloway, 45 Ind. App. 36, 90 N. E. 87; Alexander v. Railway Co., 144 N. C. 93, 56 S. E. 697; and Walker Bros. v. Ry. Co., 137 N. C. 163, 49 S. E. 84), when they are considered with reference to their facts. There is nothing in the record before us indicating that the phrase was used in the sense suggested by appellee. Hence it must be treated as if used in its proper sense, which, we think, is synonymous with the “time required when proper care is used.” In other words, we do not think “reasonable time” and “time required in the exercise of proper care” can be disassociated. That they mean the same thing in the view of the Supreme Court we think is indicated by what was said in the opinion in the Prunty Case. We are of the opinion, therefore, that the conclusion that the testimony in question here was inadmissible under the ruling in the Roberts Case cannot be escaped for, when the witness Scott testified that five or six days was a “reasonable time” in which to transport the car, he in effect testified that five or six days was the time necessary to transport it if proper care was used.

It is not necessary to determine‘other questions presented by contentions in appellant’s brief, as they are not likely to arise on another trial.

The judgment is reversed, and the cause is remanded for a new trial.