Opinion
No. 7484.
September 24, 1930. Rehearing Denied October 15, 1930.
Appeal from District Court, Coleman County; E. J. Miller, Judge.
Suit by J. P. Morris against James C. Davis (now Andrew W. Mellon), Agent. Judgment for plaintiff, and defendant appeals.
Affirmed.
Dibrell Starnes, of Coleman, and Terry, Cavin Mills and Lewis Jeffrey, all of Galveston, for appellant.
W. Marcus Weatherred and Critz Woodward, all of Coleman, for appellee.
This is the fourth appeal of this case. The opinions on former appeals which state the facts and nature of the suit are reported in (Civ. App.) 257 S.W. 328; (Civ. App.) 259 S.W. 592; (Com. App.) 272 S.W. 1103; (Civ. App.) 292 S.W. 574; (Civ. App.) 3 S.W.2d 109; and (Com. App.) 13 S.W.2d 63.
Appellee sued appellant to recover damages to a shipment of cattle from Hugo, Okla., to Coleman, Tex.; the shipment originating in April, 1919. The case was tried to a jury on special issues, and upon their verdict judgment for $2,644.72 was rendered for appellee against appellant, the judgment being for $1,630 specific damages to the cattle as found by the jury, and 6 per cent. interest accruing thereon after the 1st day of May, 1919, amounting to the additional sum of $1,014.72. The appeal is predicated upon five propositions, as follows:
1. That since the suit was for unliquidated damages to a shipment of cattle no judgment could be rendered for interest accruing prior to the date of the judgment without a submission of that issue and a finding of the jury allowing interest.
Appellee pleaded and prayed for interest as damages. Interest is recoverable as damages in a suit for unliquidated damages to a shipment of cattle as a matter of law. So, when the jury determined upon a special issue the amount of the specific damages to the cattle, there was and could be no controversy as to the amount of interest; and therefore it was not necessary to submit the issue to the jury. Ewing v. Win. L. Foley, 115 Tex. 222, 280 S.W. 499, 503, 44 A.L.R. 627; Miller v. Miller (Tex.Civ.App.) 292 S.W. 917; Settegast v. Timmins (Tex.Civ.App.) 6 S.W.2d 425; Western Union Tel. Co. v. Eckhardt (Tex.Civ.App.) 2 S.W.2d 505.
Appellant's propositions 2, 3, 4, and 5 relate to the contention that J. P. Morris did not at any time within two years after the accrual of the cause of action allege or prove such ownership of the cattle or show any authority to institute this suit for the recovery of damages thereto. This contention and the questions raised were specifically determined by this court on the second appeal of this case, reported in 292 S.W. 574 (writ of error refused by the Supreme Court), against the contentions now made by appellant. We see no necessity to further discuss these questions, and the judgment of the trial court will be affirmed.
Affirmed.