
    MEADOLAKE FOODS, Inc. v. ESTES.
    No. A-2077.
    Supreme Court of Texas.
    March 23, 1949.
    Rehearing Denied April 27, 1949.
    Joe A. Keith, Freeman, Wolfe, Keith & Milam, J. F. Holt and David H. Brown, all of Sherman, for petitioner.
    Webb & Rogers and F. Neilson Rogers, all of Sherman, for respondent. "
   PER CURIAM.

This suit is before, us upon application for writ of error. It is one for damages occasioned by reason of the purchase of «cows infected by Bang’s disease.

The jury found that the plaintiff below, who is respondent here, failed to use ordinary care to minimize the damages .sus-, tained by him, and that such failure was a proximate cause of a portion of the damages. No issues were submitted, and none were requested, seeking to ascertain the extent to which the damages were enhanced by reason of such negligence, or to which they might have been lessened by the use of ordinary care on the part of the plaintiff. The burden in that respect was upon the defendant, who is the petitioner here.

In Belcher v. Missouri, K. & T. R. Co. of Texas, 92 Tex. 593, 50 S.W. 559, 561, which also involved the failure of the plaintiff to use ordinary care to minimize his damages, under facts similar to these, this court said: “ * * * If the plaintiff

showed negligence on the part of the defendant, he was prima facie entitled to recover all of the damages sustained, and the burden of proof rested upon the defendant to prove the negligence by which plaintiff enhanced the amount of the damage or failed to prevent the injury, as well as the extent to which such damages were enhanced, or to which they might have been lessened by the use of ordinary care on the part of the plaintiff.”

In view of this rulé, the application for writ of error is refused, no reversible error. Morgan v. Young, Tex.Civ.App., 203 S.W.2d 837.  