I have been unable to concur in the conclusions of the majority upon which the reversal is predicated, viz., that the questions to and answers of the witnesses McIntyre and Hampton "should have been excluded on the ground that the same involved, the conclusions of the witnesses upon a mixed question of law and fact, the determination of which was exclusively the province of the jury under proper instructions from the court." In a case of one of the parties herein, L. D. McIntyre v. T. P. Ry. Co. et al. (not for publication), determined by us on May 4, 1912, the eighth assignment of error was to the following question: "If that character of stock had been shipped from Abilene, Tex., to Crockett, Tex., and had been transferred with reasonable dispatch by the defendants in this case and had been properly fed and watered while in transit, what would have been in your opinion the reasonable cash market value of the stock at Crockett, Tex., upon their arrival?" The objections urged were "that said question and any answer which said witness might make thereto would involve a mixed question of law and fact, and would be a matter about which said witness was not competent to answer." In disposing of the assignment in an unpublished opinion the writer, the other members of the court not concurring, then expressed the conclusion that "the case of H. T. C. Ry. Co. v. Roberts, 101 Tex. 418,108 S.W. 808, has no application whatever to the evidence of the witness L. D. McIntyre complained of in the eighth assignment." The same conclusion it appears to me properly obtains here. All of the cases cited by the majority in support of their opinion, save that of T. P. Ry. Co. v. Jones, 124 S.W. 194, merely follow the Roberts Case, and in the case of Railway v. Jones there was the same misapplication that the majority has made herein. In the Roberts Case the question was: "From your own knowledge and experience as a cattleman and from your own experience in shipping cattle to the territory and vicinity over these roads, having gone with several shipments over the roads that these cattle were shipped, what is a reasonable time within which to transport a train of cattle from Llano to Fairfax when they are transported with ordinary care and diligence?" It seems quite evident that the question sought to elicit the statement of the witness upon one of the very conclusions that was necessary for the jury's determination, and that, therefore, the case of Railway v. Roberts was correctly decided. But not so here as it seems to the writer. The court distinctly submitted to the jury the issue of whether the defendants herein were guilty of negligence in delay and rough handling of the plaintiff's stock during the transportation, and there is ample evidence to sustain the jury's finding upon this issue. The evidence also shows that the witnesses McIntyre and Hampton fully qualified themselves to speak as to the question of values in Philadelphia, the destination of the horses, and no objection or complaint is made in either of these respects, and to my mind the question objected to herein was purely a hypothetical one which by no means seeks to elicit the answer of the witness upon the conclusions embodied in the question, nor did the answer of the witness support or tend to support the conclusion so embodied. That conclusion depended upon other evidence which, as stated, was submitted to the jury in an unobjectionable form. The fact sought by the question here under consideration was the opinion of the witness of the *Page 1106 value of the horses involved in the shipment at the point of their destination in the contingency of their transportation within a reasonable time and without unnecessary injury as the plaintiffs under the law had the right to require, and the answer of the witness went alone to this point. That questions of like character are permissible, see I. G. N. Ry. Co. v. Mills, 34 Tex. Civ. App. 127, 78 S.W. 11; 1 Wigmore on Evidence, § 673 et seq.; Economy Light Power Co. v. Sheridan, 200 Ill. 439, 65 N.E. 1070; Smith v. C. A. R. Co.,119 Mo. 246, 23 S.W. 785.
To be brief, I think the case of K. C., M. O. Ry. Co. v. West, 149 S.W. 206, referred to by the majority, applies, and that the view therein expressed by Justice Rice on substantially the same point as here presented is correct. In my opinion the judgment should be affirmed as to all parties.