American Ry. Express Co. v. Thompson

• Citation: American Ry. Express Co. v. Thompson, 2 S.W.2d 493 (Tex. App. 1927)
• Decision Date: 27 October 1927
• Citation: 2 S.W.2d 493
• Docket Number: (No. 579.)
• Parties: AMERICAN RY. EXPRESS CO. v. THOMPSON.
• Court: Texas Court of Appeals

2 S.W.2d 493

AMERICAN RY. EXPRESS CO. v. THOMPSON.

(No. 579.)

Court of Civil Appeals of Texas. Waco.

October 27, 1927.

Rehearing Denied December 15, 1927.

Appeal from Navarro County Court; Warren Hicks, Judge.

Action by L. C. Thompson against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sharp & Gray, of Ennis, for appellant.

Callicutt & Upchurch, of Corsicana, for appellee.

BARCUS, J.

Appellee filed this suit against appellant to recover the actual value of certain household goods and wearing apparel which he claimed appellant lost, and for damages to other personal property which was occasioned by appellant's negligence. It appears that appellee shipped his bedding, wearing apparel, and household effects by express in five boxes and four trunks from Athens, Ala., to Powell, Tex. Appellant failed to deliver one box of the wearing apparel and household effects, and damaged some of the others. Appellee alleged in detail the damages done to the goods which were delivered and listed the contents of the box which was lost. Appellant answered by general demurrer and general denial. Appellee and his wife were the only witnesses who testified as to the actual value of the goods contained in the box which was lost. Appellee's wife testified that, among other things in the box, there were three table covers, Indian head linen, worth $45; nine embroidered bed sheets, $4 each, $36; three dresser scarfs, $25 each, $75; two mantle scarfs, $30 each, $60; twelve pillowcases, $15 each, $180; one box of pictures, $100; and several other smaller items, totaling $698.50. She testified that the sheets, pillowcases, doilies, scarfs, and counterpanes that were in the box were handworked and embroidered; that she spent many hours and much labor in making them; that it would take as much as 30 days to make one of said articles, and that she valued them very highly. The court submitted this issue to the jury:

"What was the actual value to plaintiff of the goods that were shipped by the plaintiff and which were not delivered by the defendant to plaintiff? In this connection you are instructed that the value is the actual value of the goods to the plaintiff at Powell, Tex., at the time they should have been delivered. Answer in dollars and cents."

"To which the jury answered: $373.50."

Appellant objected to the court submitting the above issue, because "the court failed to submit the law of damages relative to a sentimental or fanciful value which the owner of said goods might place upon them," and in connection therewith requested the court to submit the following special definition:

"You are instructed that, in order to ascertain the damages for loss of household goods, you shall determine their actual value to the owner at the destination at the time they should have been delivered, and you shall distinguish from a fanciful or sentimental value which the owner may place upon the goods."

Appellant requested the court to give the following special issue:

"What was the actual value of the goods to plaintiff that were shipped by plaintiff and which were not delivered by the defendant to plaintiff at the time said delivery should have been made on December 10, 1924? In this connection you are instructed that you are to be governed by the actual value of the goods to plaintiff at Powell, Tex., and not the fanciful or sentimental value that he might place on said goods."

The court refused to give said special definition or issue, and refused to instruct the jury that they could not consider the fanciful or sentimental value of the goods in arriving at the actual value, and appellant has assigned error to the court's failure to so instruct the jury. We sustain this assignment. Without approving the wording of the special instruction or special issue, we think they were sufficient to call the trial court's attention to said question. Article 2189 of the Revised Statutes 1925 provides that:

"In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues."

In view of the testimony of appellee and his wife with reference to the class and character of the goods lost, and the values placed thereon, appellant was entitled to have the court instruct the jury that it could not consider any fanciful or sentimental value in arriving at the actual value to appellee of the goods. The law seems to be well settled that the measure of damages where secondhand articles of clothing or household goods are lost, in the absence of a market value, is the actual value, and in defining same in a number of opinions the appellate courts have stated that actual value of household goods and wearing apparel is not a price suggested by the owner's partiality for them, nor yet what he could sell them for, neither would it be a fanciful or sentimental value, but the actual loss in money he would sustain by being deprived of such articles of domestic use. I. & G. N. R. Co. v. Nicholson, 61 Tex. 550; M., K. & T. Ry. Co. v. Dement (Tex. Civ. App.) 115 S. W. 635; St. L., I. M. & S. Ry. Co. v. Green, 44 Tex. Civ. App. 13, 97 S. W. 531.

In a suit where the issue to be determined was whether a party was suffering from an injury or from apoplexy, the court held that the trial court should have defined the word "apoplexy." Robinson v. Ætna Life Ins. Co. (Tex. Com. App.) 276 S. W. 900. Again, where the issue was whether parties constituted a partnership, it was held that the court should have defined the word "partnership." Connellee v. Nees (Tex. Com. App.) 266 S. W. 502. Again,...