This appeal is prosecuted from a judgment of the county court at law awarding appellee, L. L. Longoria, damages for injury to an automobile owned and driven by him resulting from a collision between said automobile and one owned by appellant, Chase Bag Company, and driven by its agent and employee in discharge of the duties of his employment. The case was submitted on special issues. The jury in response thereto found that appellant’s agent and employee operated appellant’s car in a negligent manner, that such negligence was the proximate cause of the collision and the resulting damage to appellee’s car, and that appellee was not negligent in the oрeration of his car, and assessed appellee’s damage at the sum of $307.10. From the judgment in favor of appellee against appellant for said sum, this appeal is prosecuted.
Opinion.
Appellant assigns as error the definition given by the court for the guidance of the jury of the term “preponderance of the evidence,” and contends that such definition was a comment on the weight of the evidence. Appellee testified to the facts and circumstances attending the accident, and introduced the testimony of three other witnesses tending to corroborate his testimony. Appellant’s agent and employee who was operating its automobile at the time testified to such facts and circumstances. His was the only testimony introduced by appellant with reference thereto. The court, in the original draft of his charge, defined the term “preponderance of the evidence” as meaning “the greater weight and degree of crеdible testimony.” Appellant objected to such definition because it did not include as an element thereof a further instruction that such term had no reference to the number of witnesses. The court thereupon modified the definition so as to mаke the same read: “By the term ‘preponderance of the evidence’ as that term is hereinafter used, is meant the greater weight and degree of credible testimony before you, and does not necessarily mean the greater number of witnesses.” Appellant, without withdrawing its said objection to the charge as originally prepared, objected to such definition on the ground that it was a comment on
Appellant assigns as error the action of the court in overruling its objection, to the manner in which the court submitted the issue of appellee’s damage. The issue so submitted and the answer of the jury thereto were as follows: “What sum of money, if any, do you find and believe from a preponderance of the evidence was the reаsonable cost of repairing the plaintiff’s automobile on the 19th day of January, 1929, at Sam Pordyce, Texas, for the damage, if any, directly and proximately caused by the. collision? Answer; 307.10.”
Appellant’s only objection to such issue was that it prеsented an improper measure of damages. The purpose of the statute (Rev. St. 1925, art. 2185) which requires the court to prepare his charge and submit the same to counsel for both parties for inspection and criticism is plain. Such purрose is that court and counsel should thus join in a frank and sincere effort to secure a proper submission of the case. Walker v. Haley,
Appellant presents several assignments in which it attacks the sufficiency of the evidence to support the verdict and judgment. The accident happened December 5. 1928, on a country road somewhere between Sam Pordyce, where appellee lived, and the city of Laredo. Appellee’s car was badly wrecked, and was towed into a repair shop at McAllen, Tex., by wrecker service. The testimony does not show exactly hоw long the car had been run, but it does tend to show that it was comparatively new when wrecked. The damage thereto was so great as to create serious doubt about the advisability of trying to repair the same. Estimates of the cost were made, necessary parts ordered from the factory, and repairs completed January 19, 1929. Appellee paid therefor the sum of $307.10. The price charged was not only reasonable,
Appellant by its acquiescence in the issue as submitted merely waived the submission of further issues invoking findings with reference to whether the value of appellee’s car after .its repair was greater than its value before the accident, and, if so, the amount of such increase. As before stated, the testimony not only fails to show such increased value, but as a whole tends to show the contrary. All of appellant’s complaints of the insufficiency of the testimony to support the verdict and judgment are overruled.
Appellant contends in this court for the first time that the trial court erred in rendering judgment in appellee’s favor because the record contains no findings by the jury that it owned the ear which collided with and injured appellee’s car, and that the same was being operated at the time by its agent and employee in the discharge of the duties of his employment. Appellant presents the same as fundamental error. A similar situation was considered by this cоurt in Kent v. National Supply Co.,
“Appellant presents a group of propositions in which he contends that the court erred in entering judgment against him in favor of appellee in the аbsence of an affirmative finding by the jury that he converted its property, as alleged in its petition. He also contends in this connection that appellee waived any right to recover herein by not requesting the court to submit such issue. We have examined all of appellant’s assignments of error and find that none of them raise the issue presented by said propositions. Appellant suggests incidentally in this connection that said propositions present fundamental error. We do nоt think so. The submission of an issue supported by uncontradicted testimony of such conclusive nature that reasonable minds cannot differ as to the effect thereof is neither necessary nor proper. Such an issue is one of law and should be dеtermined by the court. Ewing v. Wm. L. Foley, Inc.,
Under the rule announced in the foregoing excerpt, no fundamental error is shown in this ease, and appellant’s contentions are overruled.
■The judgment of the trial court is affirmed.