131 S.W. 248 | Tex. App. | 1910
In November, 1896, appellant Rex deposited with Theodore Heyck, as warehouseman and bailee for hire, certain personal property to be kept until called for. Later Heyck sold his warehouse to appellee Henry James with agreement, as Heyck alleged, that he, James, would keep and deliver the property to the owner. James denied that in receiving the goods he assumed any liability therefor, but it is undisputed that he received possession of the warehouse with Rex's property therein and that he accepted a list of all the articles on deposit. Yet later, James in turn sold the warehouse and delivered possession thereof, together with the personal property mentioned, to one, H. H. Miller, husband of Mrs. Grace Miller who had purchased from James. H. H. Miller converted the property to his own use, and appellant Rex instituted this suit for the value of the property he had so deposited. The trial resulted in a judgment for Rex against H. H. Miller and Mrs. Sophie Heyck, surviving wife and successor in estate of Theodore Heyck, who had died in the meantime, but in favor of Henry James as against all other parties.
Without effort to dispose of the assignments in order, we think the judgment in this case erroneous, regardless of the rejected testimony of *241 John Sayles, E. A. Heyck and others to the effect that it was expressly understood at the time appellee James received the goods in controversy that he would assume responsibility therefor and deliver to the owner. The undisputed testimony is to the effect that he did receive the goods under circumstances making him liable at least as a depositary bailee, and if to him we apply the rule insisted upon in his behalf, towit, liability for gross negligence, it seems almost, if not quite, undisputed that he was guilty of gross negligence in the delivery of the goods to Miller, particularly in the absence of any evidence that Miller was a responsible person, and in view of his announced purpose of disposing of the goods.
In the case of Wear v. Gleason, in the Supreme Court of Arkansas,
Appellant Rex insists that the uncontradicted testimony is to the effect that the chattel converted was of the value of three hundred and *242 twenty dollars and seventy-five cents instead of one hundred and fifty dollars as found by the court, and that the judgment should therefore have been rendered for the full value as he gave it in his testimony. We, however, are not prepared to adopt his proposition. While it seems that no other witness testified expressly to values, the articles were described by some of the witnesses and such description necessarily entered into the determination of the value. Appellant Rex's estimate was necessarily largely matter of mere opinion and affords no certain criterion. We feel, therefore, unable to say that it affirmatively appears that the judgment is wrong in this respect.
It follows from the foregoing conclusions that the judgment of the court below in favor of appellant Rex as against Mrs. Sophie Heyck should be affirmed; that the judgment in favor of appellee James should be reversed and here rendered in favor of appellant Rex for the amount of the judgment below; that appellant Mrs. Sophie Heyck should have judgment over against appellee James for any sum she may be required to pay under this judgment. The prayer in the brief of appellee James that judgment in his favor over against H. H. Miller be rendered for all such sums as he may be required to pay out under this judgment must be denied for the reasons that nothing in the record shows service upon Miller of appellee James' alternative cross action, or that Miller answered thereto, and no appeal from the judgment as rendered was taken by appellee James. Harris v. Schlinke,
Affirmed in part, and reversed and rendered in part.