First assignment: Testimony of Lock that he knew the usual and customary time for a shipment of cattle to be in transit between Marfa and San Antonio, Tex., to be from 25 to 30 hours, *Page 866 was objected to upon the grounds that the witness was not qualified to give such testimony. The objection was overruled, and thereafter upon cross-examination he testified:
"The only thing I know about the usual and customary transit time is what I have learned from my men or what my accounts sales show."
Whereupon counsel for defendant moved the court to strike out the witness' testimony as to customary transit time, upon the ground that it was hearsay. It seems to me that it was error to refuse to exclude this testimony upon motion for the reason that it is pure hearsay, being apparent that the testimony is not based upon personal knowledge.
I think the sixth is also well taken. Metcalfe's testimony that Lyford wrote him the cattle were put in unclean pens was pure hearsay, and calculated to have its effect upon the jury in arriving at its verdict.
The fifth urges that the court should not have submitted the case at all for the reason that there is no evidence as to the measure of damages. The ninth says, there being no evidence of delay and rough handling, this question should not have been submitted as a basis of recovery. And 10 is that, there being no evidence that the cattle were placed in unclean pens by the defendant or its agent, there is no proper basis for a recovery upon that act of negligence charged. Believing, as I do, that the testimony of Lock as to usual and customary time for shipment to San Antonio from Marfa, and being no other evidence upon the point, should have been excluded, there is no evidence in the record upon which to base a recovery for delay, and the only evidence which attempts to fix a measure of damages is that of the agent of the purchaser, Lyford, and his basis is fixed by the two statements: First, that the shrinkage was from 40 to 50 pounds per head; and, second, that they sold from 2 to 4 cents per pound less than they would have sold for if they had been in good shape and in the proper pens. Since we are without evidence of negligent delay, there is nothing left as a basis for a recovery of damages except that of placing the cattle in unclean pens, and there is no way the jury could have found what loss was occasioned by placing in unclean pens, and that caused by shrinkage. In fact, the record is silent as to who in fact unloaded the cattle so as to charge the defendant with any negligence because of their being in unclean pens. And plaintiff has pleaded that these cattle "were billed to Ft. Worth with the privilege of receiving and unloading same for sale at San Antonio." (Supp. pet. pp. 53, 54.) The clear meaning of this is that plaintiff should unload at San Antonio.
For the reason that there is no evidence of actionable negligence upon the part of defendant the court erred in submitting the case, and, for that reason, and, because of the improper admission of testimony, I am of the opinion that the case should be reversed and remanded. I therefore enter my dissent.