BRADY, J.
'The railway companies have appealed from a judgment for damages arising out of certain shipments of horses and mules. As to one of the ears in question, it was a necessary element in plaintiff’s case to estáblish that the animals, if shipped according to contract, would have passed government inspection. Plaintiff had contracted to sell them to one Evans, who purchased them for sale to the government for war purposes, provided they were of the grade and quality required by the government, to be determined by governmental inspection. This sale was made the basis of plaintiff’s claim for special damages. The chief requirements of the government inspection related to age, weight, and height, and the animals were required to be sound in limb and to be broken.
The plaintiff sought to prove that the horses and mules were up to government standard by his own testimony and that of several experienced horse and mule men. He testified, in substance, that the live stock in question were fully up to the government’s standards and requirements, and that, in his opinion, they would have passed the inspector, and would have been received. He stated, however:
“That the stuff he had in this particular shipment was about the average as to quality and requirements of what had been bought and received by the government inspector.”
W. R. Godby, a witness for plaintiff, testified that he saw 23- head of plaintiff’s stock, and that, in his opinion as a horse and mule man, generally, they were good stuff for the purpose of meeting the requirements of the government. He did not undertake to state positively as to the age of the animals, nor their weight, and admitted that he was not looking at the stock with a view as to whether they would pass government inspection, and “that nobody could say whether they would or would not pass the government inspection, but they looked like that kind of stuff.” He also testified that while he believed practically all of them were from 15 hands up in height, some of them could have been less than 15 hands high; all government mules of this class being required to be at least 15 hands in height.
C. A. White testified for the plaintiff, giving substantially the same' opinion as Godby. He admitted, however, that he did not make a close inspection, and that if he had been intending to buy for sale to the government he would have gone over the stock a great deal more closely. ,
O. V. Evans, also a witness for plaintiff, and with whom plaintiff had contracted for the sale of the animals^ testified that he saw about 17 of the mules in question, and that they were of war type, and such as would pass government inspection; that he did not look at them, however, with a view to determine their class. He further stated that these 17 head were the same ones that Mr. Honea bid on; that Mr. Honea measured some of the mules, and found one or two of them short of 15 hands high; that he assist
ed Honea in measuring them, and that one of them appeared to he lame; that Honea measured all the small mules, and said he had measured them because they were not up to the government standard.
The defendant railway companies offered the testimony of L. G. Honea to the effect that he examined some 15 or 16 of plaintiff’s mules, which he was wanting to buy as war mules. He made a bid on them, and inspected them for the purpose of determining whether they were up to government standard, although not a government inspector; that he measured some of the mules, and found 2 of them short of 15 hands in height, and one or two perhaps a little lame; that he did not know whether this was caused from tender hoofs or not; that he did not recall that any of them had any substantial physical defects.
Appellants’ first assignment of error complains of the action of the trial court in refusing to give special charge numbered “question No. 7-A,” as follows:
“If you have answered No. 7 in the affirmative, then state whether plaintiff’s horses, alleged to have been sold for government use, would have passed inspection by the government had they arrived at Brownwood on November 7 or 8, 1917. Answer this question Tes or No.”
Special issue No. 7, referred to in this requested instruction, asked the jury to state whether or not the plaintiff had sold to Evans the 29 head of mules and 1 horse in question, provided they would pass inspection and be received by the government. The Chief Justice and the writer are of the opinion that the refusal to give this charge was reversible error, and we will briefly state our reasons.
Plaintiff’s case as pleaded was one for special damages, and it was necessary to a recovery that he should prove the live stock was up to the government standards and would have passed inspection. The burden of proof was upon him. We believe we have made a fair statement of the evidence bearing on this point, and it discloses that the fact was sought to be established by opinions of the witnesses. It may be conceded that in the nature of the case such testimony was proper, but it is clear that plaintiff might have offered more definite proof to show that the animals met the government requirements in all respects. Be this as it may, however, it is evident that the testimony did not take the question out of dispute.
Plaintiff was himself an interested witness, and the testimony of his other witnesses was of such character as, in our opinion, to make the whole question one for the jury and not for the court. Treating the special issue requested as one which would have required the jury to determine whether all of the stock met the government standards, and would have passed inspection, we think the testimony fairly raised this issue of fact. Especially is this true when we consider the testi-' mony of Honea, who examined only a little over half the animals, and in that number alone found at least two under height and some of them lame.
It is a rule of law, too well settled to require citation of authority, that the jury, being the sole judges of the credibility of the witnesses and the weight to bo given their testimony, are not bound by the statements of interested witnesses, even though they may be undisputed by the testimony of others. It is the peculiar province of the jury to examine such testimony in the light of all the facts and circumstances of the case, and to give such weight to the same as they may consider proper. It is also settled law that where a fact is sought to be established by opinion evidence, not amounting to the certainty of positive proof, although not disputed by other evidence, the jury are free to give such weight to the same as in their judgment it may be entitled to. We think these rules are specially applicable in a case like this, where the evidence is in some respects conflicting, and where the proof in part proceeded from an interested witness and in part from other witnesses, whose opinions seem lacking in positiveness, or where the facts upon which they are based in the judgment of the jury might be inadequate.
We are further of the opinion that, even if Honea’s testimony only raised the question of part of the stock being below the government requirements, still, it was error for the trial court to refuse to give the special charge.
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BRADY, J.
'The railway companies have appealed from a judgment for damages arising out of certain shipments of horses and mules. As to one of the ears in question, it was a necessary element in plaintiff’s case to estáblish that the animals, if shipped according to contract, would have passed government inspection. Plaintiff had contracted to sell them to one Evans, who purchased them for sale to the government for war purposes, provided they were of the grade and quality required by the government, to be determined by governmental inspection. This sale was made the basis of plaintiff’s claim for special damages. The chief requirements of the government inspection related to age, weight, and height, and the animals were required to be sound in limb and to be broken.
The plaintiff sought to prove that the horses and mules were up to government standard by his own testimony and that of several experienced horse and mule men. He testified, in substance, that the live stock in question were fully up to the government’s standards and requirements, and that, in his opinion, they would have passed the inspector, and would have been received. He stated, however:
“That the stuff he had in this particular shipment was about the average as to quality and requirements of what had been bought and received by the government inspector.”
W. R. Godby, a witness for plaintiff, testified that he saw 23- head of plaintiff’s stock, and that, in his opinion as a horse and mule man, generally, they were good stuff for the purpose of meeting the requirements of the government. He did not undertake to state positively as to the age of the animals, nor their weight, and admitted that he was not looking at the stock with a view as to whether they would pass government inspection, and “that nobody could say whether they would or would not pass the government inspection, but they looked like that kind of stuff.” He also testified that while he believed practically all of them were from 15 hands up in height, some of them could have been less than 15 hands high; all government mules of this class being required to be at least 15 hands in height.
C. A. White testified for the plaintiff, giving substantially the same' opinion as Godby. He admitted, however, that he did not make a close inspection, and that if he had been intending to buy for sale to the government he would have gone over the stock a great deal more closely. ,
O. V. Evans, also a witness for plaintiff, and with whom plaintiff had contracted for the sale of the animals^ testified that he saw about 17 of the mules in question, and that they were of war type, and such as would pass government inspection; that he did not look at them, however, with a view to determine their class. He further stated that these 17 head were the same ones that Mr. Honea bid on; that Mr. Honea measured some of the mules, and found one or two of them short of 15 hands high; that he assist
ed Honea in measuring them, and that one of them appeared to he lame; that Honea measured all the small mules, and said he had measured them because they were not up to the government standard.
The defendant railway companies offered the testimony of L. G. Honea to the effect that he examined some 15 or 16 of plaintiff’s mules, which he was wanting to buy as war mules. He made a bid on them, and inspected them for the purpose of determining whether they were up to government standard, although not a government inspector; that he measured some of the mules, and found 2 of them short of 15 hands in height, and one or two perhaps a little lame; that he did not know whether this was caused from tender hoofs or not; that he did not recall that any of them had any substantial physical defects.
Appellants’ first assignment of error complains of the action of the trial court in refusing to give special charge numbered “question No. 7-A,” as follows:
“If you have answered No. 7 in the affirmative, then state whether plaintiff’s horses, alleged to have been sold for government use, would have passed inspection by the government had they arrived at Brownwood on November 7 or 8, 1917. Answer this question Tes or No.”
Special issue No. 7, referred to in this requested instruction, asked the jury to state whether or not the plaintiff had sold to Evans the 29 head of mules and 1 horse in question, provided they would pass inspection and be received by the government. The Chief Justice and the writer are of the opinion that the refusal to give this charge was reversible error, and we will briefly state our reasons.
Plaintiff’s case as pleaded was one for special damages, and it was necessary to a recovery that he should prove the live stock was up to the government standards and would have passed inspection. The burden of proof was upon him. We believe we have made a fair statement of the evidence bearing on this point, and it discloses that the fact was sought to be established by opinions of the witnesses. It may be conceded that in the nature of the case such testimony was proper, but it is clear that plaintiff might have offered more definite proof to show that the animals met the government requirements in all respects. Be this as it may, however, it is evident that the testimony did not take the question out of dispute.
Plaintiff was himself an interested witness, and the testimony of his other witnesses was of such character as, in our opinion, to make the whole question one for the jury and not for the court. Treating the special issue requested as one which would have required the jury to determine whether all of the stock met the government standards, and would have passed inspection, we think the testimony fairly raised this issue of fact. Especially is this true when we consider the testi-' mony of Honea, who examined only a little over half the animals, and in that number alone found at least two under height and some of them lame.
It is a rule of law, too well settled to require citation of authority, that the jury, being the sole judges of the credibility of the witnesses and the weight to bo given their testimony, are not bound by the statements of interested witnesses, even though they may be undisputed by the testimony of others. It is the peculiar province of the jury to examine such testimony in the light of all the facts and circumstances of the case, and to give such weight to the same as they may consider proper. It is also settled law that where a fact is sought to be established by opinion evidence, not amounting to the certainty of positive proof, although not disputed by other evidence, the jury are free to give such weight to the same as in their judgment it may be entitled to. We think these rules are specially applicable in a case like this, where the evidence is in some respects conflicting, and where the proof in part proceeded from an interested witness and in part from other witnesses, whose opinions seem lacking in positiveness, or where the facts upon which they are based in the judgment of the jury might be inadequate.
We are further of the opinion that, even if Honea’s testimony only raised the question of part of the stock being below the government requirements, still, it was error for the trial court to refuse to give the special charge.
Appellants complained of the court’s submission of certain of the special issues because of the failure to submit to the jury the question whether the animals would have passed the government inspection. The special charge we are discussing embraced each of the animals in question, and was sufficient to call the court’s attention to his failure to submit to the jury a material, if not controlling, question in the case, and precluded the trial court from making an implied finding thereon. Appellants were as much entitled to have the jury pass upon the question whether all the animals or any part thereof would not have .passed the government inspection, because not up to the standards and requirements prescribed for war purposes, as any of the other disputed questions submitted to the jury, such as the question whether plaintiff had contracted for the sale of the animals, and at what price, and the market value of the stock, as a basis for estimating special damages. The testimony as to these questions was altogether from plaintiff and his witnesses, and yet they were all submitted to the jury; and wo think properly so. Believing, that appellants have been deprived of the substantial right of a trial by jury upon a most material issue, which
they fairly tried to protect, we conclude that the cause should be reversed and remanded for another trial.
There are other questions raised in the briefs as to alleged errors of the trial court, which will probably be eliminated on another trial, but which we do not deem it necessary to discuss. It is sufficient to say that as presented we do not think the other assignments show reversible error, and they are therefore overruled.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.