The writer cannot concur in some of the conclusions reached by Justice DUNKLIN in overruling appellees' motion for rehearing. In the opinion of the writer, the testimony of E. D. Martin was admissible. It is shown that he had considerable experience with reference to the use of vacuum pumps, and the writer thinks he showed himself qualified to testify as an expert as to the probable effect of the use of such pumps, and the tendency to draw from under adjacent tracts oil. The writer also thinks that he showed himself qualified to testify to the effect that vacuum pumps would have to draw the oil from adjacent tracts through channels of oil-bearing sands. Certainly if this was a damage suit against a railway company for allowing cattle to be exposed to freezing weather, and suffer loss in weight therefrom, a cattle man who had had long experience in raising, feeding and handling cattle, in all kinds of weather, would be qualified to testify as to the effect such cold would have on the cattle, and his expert knowledge would not be the knowledge of the average juror. Or, if there was a suit against a man or corporation for feeding cattle improper food, a cattle man showing himself qualified as an expert, could testify that hay and forage stuff would not put on as much flesh on a cow as cotton seed hulls and cotton seed meal. It might be said in that case, as it is claimed in this, that the witness could not see the process of nature, and could not tell except from experience what sort of food would make cattle fat, or what sort of food would be the best to fatten them. The writer thinks that one who has had a large experience in oil fields, and in the determination of the effect that vacuum pumps have on the increase in oil production, is qualified to testify that vacuum pumps tend to draw the oil from under adjacent tracts, although he never saw such channel made, and was never under the ground where they were made.
The writer has briefly stated his dissenting views, and he thinks that this testimony of E. D. Martin, as well as that of the witness Woods, is sufficiently cogent and positive to justify the trial court and this court to disregard the testimony of W. P. Olden, even though the objection to his testimony be sound, and for this court to affirm the judgment of the trial court. Therefore, in the writer's opinion, the judgment heretofore rendered, reversing and remanding the cause, should be set aside, and a judgment here entered affirming the judgment of the trial court. *Page 378