Fort Worth & D. C. Ry. Co. v. Ryan

271 S.W. 397

Opinions

On Motion for Rehearing.

Our attention is called to the fact that the appellant did not, in his' motion 'for new trial in the court below, call the attention of the court to claimed' error of allowing intei’est from January 21, 1921, the date the cattle were sold. Hence, we were not required to adjudge the costs of appeal against the appellee. Shippers’ Compress & Warehouse Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032, by the San Antonio Court of Civil Appeals; Moore et al. v. Wooten et al., 265 S. W. 210, by the Beaumont Court of Civil Appeals. Therefore, we conclude we erred in our original opinion and judgment in adjudging the costs of this court against appellee. We have considered appellee’s further contention that we erred in denying him. a recovery of such interest in a case where, like this, the cause was submitted to a jury on special issues, and no request was made for the submission of such issue, or for a peremptory instruction that, in case the jury should answer that the plaintiff had suffered loss by reason of negligence of defendant, they should find interest on the amount of such loss from the date of its occurrence. We note additional authority cited by appellee to support his contention, to wit, St. L. S. W. Ry. Co. v. Seale & Jones (Tex. Civ. App.) 247 S. W. 883, but the majority feel that they were right in the disposition of this question as made in the original opinion.

We have also considered appellant’s motion for rehearing, but do not think it should be granted.

Appellee’s motion for rehearing granted in part, and overruled in part. Appellant’s motion for, rehearing overruled.

BUCK, J., dissenting as before.