
    TEXAS & N. O. R. CO. v. DAVIS.
    No. 1980.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1930.
    Rehearing Denied April 23, 1930.
    Grogan & Grogan, of Liberty, Lamar Cecil, of Beaumont, and Stevens & Stevens, of' Houston, for appellant.
    Tom Hightower, of Liberty, and E. E. Davis, of Dayton, for appellee.
   O’QUINN, J.

Davis sued the railroad in the justice court of Liberty county, Tex., to recover $150, the alleged value of two head of cattle alleged to have been killed by one of appellant’s trains on or about August 20, 1928. Judgment was rendered for plaintiff in the justice court, and the case was appealed to the county court of Liberty county. There the case was tried to the court without a jury, and judgment rendered for plaintiff in the sum of $100. Motion for a new trial was overruled, and the railroad company has appealed.

Among other matters set up in the motion for a new trial was that plaintiff had failed to identify the cattle killed as his. Several of appellant’s assignments of error urge this proposition. The appellant made no denial of killing the cattle in controversy, and signified its entire willingness to pay for same if their true owner is shown. Immediately after the cattle were killed, one Ed Cox identified them as his and made claim for their value. Shortly after, appellee, Davis, also sent in claim for them. The railroad company, as before stated, was willing to pay for the cattle, but, because of these two claims refused to pay either. Davis brought the suit; defendant did not interplead Cox, but simply defended the suit. Cox testified most positively that the cattle were his, and offered other evidence of his ownership. Davis admitted that, when the case was tried in the justice court, he was asked whether he would state the cattle were his, and that he then answered “I would not state that they were mine.” In the instant trial, in answer to the question whether he would swear that the cattle were his, he answered: “No sir, I would not swear that it was my cattle that were killed by the railroad company. No sir, I" will not swear to that.” There was considerable testimony by other witnesses as to the cattle belonging both to Davis and to Cox. In this state of the evidence, Cox testifying positively that the cattle were his, and Davis refusing to so testify, we think the assignment should be sustained and the judgment should be reversed and the cause remanded.

Reversed and remanded.  