185 S.W. 593 | Tex. App. | 1916
This suit was commenced in justice court against appellant and other carriers to recover damages for injuries to a shipment of corn. By the pleadings in justice court a general charge of negligence in transportation and resulting damages in the sum of $158.22 was charged, for which amount there was recovery against appellant. On appeal to the county court appellee amended his pleadings twice, but, since it will be necessary to specifically consider the amendments in discussing the issues, further statement of the pleading is unnecessary at this juncture. The case was submitted to a jury upon special issues of fact, and the findings of the jury which are supported by the evidence are, in substance, that appellee delivered to appellant 1,000 bushels of corn in good condition of the then market value of 18 1/2 cents per bushel for transportation and delivery to appellee's customer Brogdon at Bryan, which consignment appellant accepted, that appellant was 14 days in transporting the shipment to destination, which was an unreasonable time, and that, due to such delay, the corn when delivered was in a damaged condition, and that the difference in value of the corn in the condition in which it would have arrived had it been transported within a reasonable time and the condition in which it was delivered was 18 1/2 cents per bushel. Upon such findings the court awarded judgment for appellee for $215.65, of which sum $185 was for damage to the corn, the remainder for interest. From such judgment, this appeal was taken.
The first assignment, in effect, is that the judgment is excessive, because the undisputed evidence shows that appellee's loss was upon only 632 1/2 bushels of corn, and not upon the entire 1,000 bushels. This assignment must be sustained. According to appellee, he shipped 1,000 bushels of corn to Brogdon, and according to all of the testimony and the findings of the jury the entire 1,000 bushels were damaged, the extent of the damage being 18 1/2 cents per bushel, which would, in the absence of other facts, entitle appellee to $185, the amount allowed by the trial judge on the jury's findings. However, according to appellee's admissions, Brogdon retained 367 1/2 bushels of the corn. and paid appellee the market or agreed price of 88 1/2 cents per bushel, which reduced appellee's loss to 18 1/2 cents on 632 1/2 bushels, or $117.01. Appellee does state that Brogdon claimed damages on the amount he retained. He did not, however, testify the amount claimed or whether the claim was paid. If any amount was paid to Brogdon, appellee knew it and would undoubtedly have claimed it. The general rule is that, when personal property is damaged or partially destroyed or impaired in value, the measure of damages is ordinarily the difference between its value before the injury and immediately thereafter, together with any reasonable expense incurred and the value of any time spent in reasonable efforts to preserve or restore the property. T. P. Ry. Co. v. Levi,
By the second assignment of error it is urged that the court erred in awarding appellee interest upon the amount of his recovery, on the ground that the issue of interest was not submitted to the jury. This assignment must also be sustained. Appellee did seek the recovery of interest by his pleadings, but that issue was not submitted to the jury, and hence no finding by the jury that appellee should recover interest. The court awarded interest on the damages allowed by the jury on the theory, we presume, that the legal rate being fixed by law, and the jury having found the amount of the damage, interest, being a matter of computation, would follow as matter of law. Such view is incorrect, however. No rule is better settled than that the verdict of the jury on all issues of fact constitutes the sole basis for the judgment. Ablowich v. Greenville Nat. Bank,
Under the third assignment it is urged that the court erred in not sustaining appellant's exception to appellee's second amended original petition, on the ground that said petition disclosed a cause of action which the county court on appeal from the justice court was without jurisdiction to determine, for the reason that the amount in controversy was more than was originally cognizable in the justice court. An inspection of the bill of exceptions reserving the objections to the action of the court hardly raises the question of jurisdiction, but, since it has been uniformly held that jurisdiction may be made an issue for the first time in this court, we will consider the issue as presented in the brief. Appellee commenced his suit in justice court April 17, 1913, and his pleadings were, in substance, that on February 14, 1912, at St. Joseph, Mo., he delivered to appellant for transportation to Bryan, Tex., a car of corn of the probable value of $750, which appellant, by negligent delay in transporting, damaged $158.22, for which sum he prayed judgment, with interest. Upon trial appellee recovered judgment for $158.22, with interest thereon from entry of judgment. Appellant removed the case to the county court for trial de novo. In that court on June 3, 1914, appellee amended, but in substance repeated, the allegations and prayer of the petition originally filed in the justice court On December 2, 1914, appellee again amended, and in substance alleged that he delivered the car of corn to appellant February 27, 1912, at Dallas, Tex., in good condition for transportation to Bryan, Tex., which in the usual course should have been transported in 48 hours, but which appellant negligently delayed for 24 days, or until March 23d, and as a result of which said car of corn, containing 1,000 bushels, was damaged 18 1/2 cents per bushel, or $185, for which amount, with interest, judgment was prayed. The rule in cases appealed from justice court to the county court is that the appellate jurisdiction of the county court cannot exceed in amount the jurisdiction of the justice court Pecos N. T. Ry. Co. v. Canyon Coal Co.,
The seventh, eighth, and ninth *596 assignments complain of the testimony of as many witnesses who gave their opinions concerning the difference in the market value of the corn in its original good condition and the condition in which it was after it had germinated as result of heating. If these witnesses were experts, they could give their opinions upon hypothetical questions as other experts are permitted to do so.
The fourth, fifth, and sixth assignments attack the sufficiency of the evidence to sustain the verdict and judgment, which are unimportant in view of the disposition to be made of the appeal.
For the errors indicated, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.
