OPINION
T. C. Arеndale purchased certain property (Ford agency) from appellee Lewis-ville Enterprises, Inc. Thereafter Liberty Sign Company, appellant, claimed ownership of two neon signs previously installed on the property. Arendale filed suit to prevent Liberty Sign Company from interfering with his ownership of the signs. Appellant counter-claimed for conversion of the signs and joined as joint tort-feasors the third-party defendants (appellees), Bill Howell, Inc., Lewisville Enterprises, Inc., and Lewisville Natiоnal Bank. Judgment against Arendale was entered in the sum of $2,779.50, found by the jury to be the reasonable cash market value of the signs, plus exemplary damages of $1,000.00 (because of conversion), and Arendale was awarded possession of the signs. The Court entered an order that appellant take nothing from appellees Bill Howell, Inc., Lewisville Enterprises, Inc., and Lewis-ville National Bank. The trial court overruled appellant’s motion for new trial and the appeal is from that order.
We reform and affirm.
Appellаnt complains of the court’s refusal to submit its requested issues inquir
In answer to special issues submitted the jury found that Bill Howell, Inc., Lewis-ville Enterprises, Inc., and Lewisville National Bank each knew, or in the exercise of reasonablе care should have known, that some third party was claiming title to the signs in question and that said appellees did not intend to convey title to said signs to Arendale. The jury further found in answer to issues submitted that said appellees did not interfere with Liberty Sign Company’s attempt to remove the signs and that Arendale knew, or in the exercise of ordinary care should have known, that some third party was claiming title to the signs.
The answers of the jury to the issues which were submitted render immaterial any issues as to whether appellees informed Arendale as to ownership of the signs. Since the jury found that Arendale knew that a third party was claiming title to the signs it necessarily follows that Arendale knew or should have known that none of the appellees were claiming or purporting to convey such signs to him and thus did not cause his conversion thereof.
We find no error on the part of the court in refusing to submit the requested issues and in overruling appellant’s objections to the charge and the issues which were submitted. Further, the trial court did not err in its refusal to submit appellant’s requested instruction in connection with Special Issue No. 14 inquiring as to whether or not the sign was permanently affixed to the realty. Had the jury, in answering this issue, found that the sign was not permanently affixed rather than that it was so affixed the judgment in the сase would be the same and thus it was immaterial whether the issue was submitted or not. In our opinion the court submitted the case upon the controlling issues made by the written pleadings and the evidence in conformity with Rule 279, Texas Rules of Civil Procedure.
It is contended that the trial court erred in its refusal to admit into evidence appellant’s Exhibits Nos. 7 and 8, consisting of demonstrative evidence in the form of computation of alleged losses sustained by it. There is no contention nor is there any showing that the court abused its discretion in ruling as it did. The admissibility of such evidence “rests in the discretion of the trial court, and its rulings will not be disturbed on appeal in the absence of a palpable abuse of discretion.” 23 Tex. Jur.2d 578, 579, “Evidence”, § 388. See also McCormick & Ray, Texas Law of Evidenсe, Second Edition, Vol. 2, page 317, § 1464.
Appellant argues that the uncontrovert-ed and undisputed evidence established as a matter of law that the market value of the signs was $11,500.00 and in support thereof relies upon 24 Tex.Jur.2d 375, § 714, and Cochran v. Wool Growers Cеntral Storage Co.,
Appellant’s president testified that the market value of the signs was between $11,000 and $12,000, at the time of conversion. The contracts in evidence reflected that Bill Howell, Inc., was to pay apрroximately $15,000.00 for the signs over a five year period. The appellant paid $11,500.00 to the Bank for money borrowed to finance construction of the signs. There was other evidence in the record bearing upon the value of such signs. The testimony in this regard was not “clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon,” or to raise some doubt in the minds of the jury as to the value. As above reflected the President of appellant had a $1,000.00 spread in the values he testified to. His testimony was not clear, direct and positive as to a value of $11,500.00.
We are of the opinion and hold that the general rule applies to the facts of this case rather than thе exception to such rule and thus, “The jury in the performance of its duty was privileged to reject all or a part of appellant’s witnesses’ testimony, even if it be regarded as uncontra-dicted. Bowie Sewerage Co. v. Chandler, Tex.Civ.App.,
It apрears pertinent at this point to discuss the appellant’s assertion that the jury’s finding of $2,779.50 as the market value of the signs was the result of misconduct on the part of the jury which established its own measure of damages and thereby “prevented Appellant from rеcovering its proper measure of damages, as submitted by the Court.”
We have very carefully examined the entire record in this cause including the court’s charge, the exceptions thereto and such issues and instructions as were requested by the aрpellant, and are unable to find any definition of “reasonable cash market value” (the term used in the special issue which was submitted), or any exceptions on the part of appellant pointing out such omission nor any submission by the appellаnt of any definition or instruction relating thereto.
The jury in the instant case was deprived of any guideline in the form of a definition or instruction to aid them in determining the cash market value of the signs. The purpose of such definition and instruction is to aid the jury in confining its delibеrations within well defined legal limitations in arriving at such values. Being deprived of such guidelines the jury was required to resort to its own initiative.
At the hearing on the motion for new trial, at which evidence and testimony from jurors was presented, an exhibit was placed in evidеnce reflecting computations made by the jury as follows:
“Cost of Sign $11,500.00
“25% Maintenance 2,875.00
8,625.00
“Rentals Paid in 6,783.00
$ 1,842.00
“5% Interest on $11,500.00 937.50
$ 2,779.50”
There is evidence by way of various exhibits, including leases, etc., and testimony upon which the jury could have based all figures in its computation except the item of 5% interest, which was supplied by a juror with some financial background. This testimony by the juror as to interest was misconduct but the appellant because thereof was enriched by the sum of $937.50. Since the appellant benefited from this misconduct, he is not in a position to complain. Stated another way, misconduct which benefits the complainant is
Rule 327, T. R. C. P., provides that, “Where the ground of the motion is misconduct of the jury * * * the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, * * * be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of thе case and from the record as a whole that injury probably resulted to the complaining party.”
Under this rule the one asserting misconduct must prove that such misconduct occurred, that it was material and that it probably resulted in injury. City of Houston v. Quinones,
Assuming that misconduct is established, such conduct, under Rule 327, supra, and the decisions, may not be material or it may not be prejudicial in that there is no showing of injury to the complaining party. Further such misconduct may be waived. We are of the opinion that appellant waived any misconduct on the part of the jury in its attempt to arrive at the market value of the signs because appellant did not complain of the omission of a proper definition or instruction in connection with, “reasonable cash market value,” (contained in the charge in this case), which phrase is used in the various opinions interchangeable with the phrases “cash market value” and “reasonable market value” and because of its failure to request in writing and tender a substantially correct definition or instruction in connection with the value issues as required by Rule 279, T. R. C. P.
In Bowie Sewerage Co. v. Chandler,
To the same effect see also General Exchange Ins. Corporation v. Young,
The jury discussion of the “negligence” of the appellant in failing to file leases involving the signs for record was based upon information contained in admissions made
We are of the opinion and hold that all misconduct complained of, if it was misconduct, was not material and that no injury probably resulted to the appellant because thereof. We further hold that such misconduct, if any, regarding the jury’s answer to the value issue was waived because of appellant’s failure to comply with Rule 279 T. R. C. P.
The appellant complains of the court’s failure to award interest on the value of the sign from date of conversion.
“If embraceable within the prayer for general relief, or specially prayed for, interest, as damages for lоss of use, may be awarded. Such interest has been computed from the date of the conversion to the time of the trial, and, in other cases, until the entry, or satisfaction, of judgment.” 14 Tex.Jur.2d 35, § 32, “Interest.”
Interest from the date of conversion to the time of trial was specially prayed for by appellant and contained in its general prayer for relief. We are of the opinion and hold that appellant was entitled to interest at 6% on the sum of $2,779.50 (found by the jury to be the market value of the signs) from April 12, 1966, (datе on which Arendale refused possession of signs and filed suit), to September 20, 1967, date of judgment, which interest amounts to $241.36.
Lone Star Mining Company v. Texeramics; Inc.,
Except for the item of interest all of appellant’s points of error are overruled.
The judgment is reformed to include interest in the sum of $241.36, making a total judgment in the sum of $4,020.86, with interest from September 20, 1967, at 6% per annum.
The judgment as reformed is affirmed.