
    TEXAS & P. RY. CO. v. PRUNTY.
    (No. 2860.)
    (Supreme Court of Texas.
    April 20, 1921.)
    1. Carriers <&wkey;229 (2) — Measure of damages for injury to shipment of horses stated.
    In action for damages to horses from rough treatment during shipment, the measure of damages is the difference between the market value of the horses at destination in the condition in which they would have been delivered but for the carrier’s negligence, and their market value in their actual condition as caused by its negligence.
    2. Evidence <&wkey;472(IO) — Opinion of qualified witness as to value ot shipment if it had been delivered in good condition admissible.
    In action against a railroad for damages to horses from rough handling in shipment, testimony by qualified witnesses as. to what the reasonable market value of the horses at destination would have been if they had been handled with ordinary care and delivered in good condition held) admissible as against the contention that it invaded the province of the jury by stating conclusions on the issue to be determined by the jury.
    3. Evidence <&wkey;486 — Qualified witness may give opinion on question of value.
    A qualified witness may give his opinion on a question of value, since value is a mere matter of opinion.
    • Certified Question from Court of Civil Appeals, Second Supreme Judicial District.
    Suit by J. Y. Prunty against the Texas & Pacific Railway Company., Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.
    George Thompson, of Eort Worth, and Mc-Murray & Gettys, of Decatur, for appellant.
    M. W. Burch, of Decatur, and R. E. Spencer, of San Antonio, for appellee.
   PHILLIPS, C. J.

The suit was one for damages to some mares and colts belonging to the plaintiff, caused by alleged rough handling by the railway company in their shipment. In proving the damages two witnesses for the plaintiff were aslced to give their opinion as to “the reasonable market value of the animals at destination if they had been handled with ordinary care and delivered in good condition.” In another form the question called for their opinion as to “the difference, if any, between the reasonable market value of the animals at destination in the condition in which they did arrive and that in which they would have arrived if handled with ordinary care and diligence.” Objection was made to the questions upon the ground that the answer to them would call for a conclusion of the witnesses which they were not qualified to give, since it involved a mixed question of law and fact. The objection was overruled and the witnesses permitted to answer. On the appeal a 'majority of the honorable Court of Civil Appeals for the Second District held that the objection was good and should have been sustained, their view being that the questions called for a conclusion on the very issue to be determined by the jury. Chief Justice Conner dissented from this holding.

The questions certified are (1) whether the trial court ruled correctly in permitting answers to the questions; and (2) whether the admission of the testimony, if erroneous, required a reversal of the judgment.

We understand from the certificate that no question was made as to the witnesses being experienced stock men, or as to their competency to give an expert opinion in answer to the questions propounded. Our answer to the first question is given on this assumption.

We think the testimony was admissible.

The measure of damages in the case, was the difference between the market value of the animals at destination in the condition in which they would have been delivered but for the carrier’s negligence, and their market value in their actual condition as caused by its negligence. The only way the damages could be proved was by evidence of such respective values. Testimony as to the first could only be given in answer to a hypothetical question, involving as its basis the assumption that the anim'als had not been subjected to negligent handling. That would have to be assumed in order for the question to furnish a proper criterion.

Does a question as to value, predicated on such an assumption, call for a conclusion of law or a conclusion upon a mixed question of fact and law? We think not. The inquiry made of a witness by such a question is not his opinion as to whether the carrier was negligent. It calls for his opinion as to the value of the property on the hypothesis that the carrier was not negligent. The proof is necessarily hypothetical, as any jury understands. The questions which elicit it must likewise be hypothetical. A qualified witness may give his opinion on a question of value, since value is a mere matter of opinion. Proof of value is proof of a fact. And proof of value based upon a given hypothesis is still proof of a fact. It invades no province of the jury, since the jury is necessarily advised that the hypothesis is assumed and is therefore not at all the subject of the inquiry.

Here the issue for the jury’s determination was whether the carrier was negligent in the handling of the animals. The questions asked the witnesses called for no answer on that question. They merely asked for their opinion as to the value of the animals, altogether assuming that they had been handled in an ordinarily careful manner. It would be a highly technical rule which would interdict such testimony from a witness qualified by knowledge or experience to give it.

In the Roberts Case, 101 Tex. 418, 108 S. W. 808 — a suit for damages for delay in the shipment of live stock — cited by the majority of the honorable Court of Civil Appeals, the testimony condemned was that of a witness as to what would have been “a reasonable time” for the shipment. This called directly for an opinion as to the carrier’s neglk gence, and the decision is correct. The testimony here was of distinctly a ¡different character. It was proof of a fact upon an issue entirely outside that of the carrier’s negligence and of no consequence unless its negligence was established.

In Chicago, Rock Island & Gulf Railway Co. v. Jones, decided by the Court of Civil Appeals for the Sixth District, 118 S. W. 759, substantially the same character of testimony as that here presented was held admissible. The ruling was challenged on application for writ of error made to this court, but the writ was refused.

Other decisions by Courts of Civil Appeals to the ,same effect are: Kansas City, Mexico & Orient Railway Co. v. West, 149 S. W. 206, and Texas & Pacific Railway Co. v. Max Hahn Packing Co., 197 S. W. 1146 — in addition to the dissenting opinion of Chief Justice Conner in Texas & Pacific Railway Co. v. McIntyre & Hamption, 152 S. W. 1103.

The answer given to the first question makes unnecessary a determination of the second. 
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