Burlington-Rock Island R. Co. v. Newsom

• Citation: 239 S.W.2d 734
• Decision Date: 03 May 1951
• Docket Number: BURLINGTON-ROCK,No. 2956,2956
• Parties: ISLAND R. CO. v. NEWSOM et ux.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 734

239 S.W.2d 734

BURLINGTON-ROCK ISLAND R. CO. v. NEWSOM et ux.

No. 2956.

Court of Civil Appeals of Texas, Waco.

May 3, 1951.

Williford & Emerson, Fairfield, Ellen Victery, Teague, for appellant.

Bowlen Bond, Teague, for appellee.

HALE, Justice.

Appellees, Luther O. Newsom and wife, sued appellant for actual and exemplary damages. Their claims for actual damages were grounded upon allegations that appellant had permitted Johnson grass to mature and go to seed on its right-of-way during 1948 and 1949 and had failed to construct and maintain its roadbed, tracks and a certain culvert thereunder in such manner as to carry surface waters resulting from an ordinary rainfall off of their land through such culvert. Their claim for exemplary damages was based upon allegations that appellant had wilfully and maliciously failed to comply with the terms of a mandatory injunction theretofore issued by the court below commanding it to construct all such necessary culverts and sluices in its embankment as the natural lay of the land adjacent thereto may require for the necessary drainage of ordinary rainfall.

The case was tried before a jury. In answer to 26 Special Issues the jury found in substance as follows: that during the month of May in 1947 and in 1948 and again on June 12, 1949, there was an ordinary rainfall on appellees' land, the natural drainage from which was through the culvert under appellant's roadbed; that appellant failed to maintain said culvert in such condition as to carry the surface waters off of appellees' land and as a result thereof such waters backed up on a part of said land, thereby causing damage to an electric pump and contaminating the water in a well so as to render the water unfit for human consumption; that the electric pump was of the reasonable cash market value of $90 before the overflow on June 12, 1949, was of no value thereafter, and that the reasonable value of the labor necessary to remove the old pump and install a new one was $10; that the reasonable value of the labor and services necessary to dig and equip another well, in lieu of the one which had been contaminated, was $131 and the reasonable value of the materials necessarily and properly required in the construction of such well was $250; that appellees did not permit Johnson grass to mature and go to seed on their land in the years 1948 or 1949, but that appellant did permit Johnson grass to mature and go to seed on its right-of-way adjacent to appellees' land during each of such years, that the same spread to appellees' land and as a result thereof appellees expended labor of the value of $50 in digging up the grass in 1949; that appellant had a reasonable time after March 26, 1949, (that being the date when the judgment of the court became final on the issuance of a mandatory injunction) and before the overflow on June 12, 1949, to remove the portion of the embankment around the concrete box in its embankment, and to construct such necessary culverts and sluices as the natural lay of the land adjacent thereto required for the necessary drainage of ordinary rainfall; that the failure of appellant to comply with the terms of the judgment relating to such injunction 'was an act intentionally done and omitted, wilfully and maliciously, full well knowing the perilous position of plaintiffs, and conscious of the duty and obligations imposed on it by said judgment and decree of this court'; that appellees had suffered exemplary damages by reason of the conduct of appellant in failing to comply with the terms of the judgment relative to such injunction and that $400 was the sum of money which would reasonably compensate appellees for the exemplary damages suffered by them.

Based upon the verdict of the jury, the court rendered judgment in favor of appellees and against appellant for the sum of $956, being $531 as actual damages, $400 as exemplary damages and $25 as statutory penalty under the provisions of Art. 6401 of Vernon's Tex.Civ.Stats. In due time appellant filed and presented its motion for new trial. The motion was overruled and the cause is now properly pending in this court for review on ten points of error.

Appellant says the trial court erred in submitting to the jury an incorrect measure of the actual damages sustained by appellees on account of the claimed injury to their water well and its equipment and in rendering judgment for such damages on the findings of the jury with respect thereto. We sustain this contention. The fundamental purpose underlying all rules for the measurement of actual damages is to indemnify an aggrieved party for the pecuniary loss suffered by him, so as to place him as nearly as possible in the same position he would have occupied but for the injury of which he complains. Reaugh v. McCollum Exploration Co., 139 Tex. 485, 163 S.W.2d 620, pt. 1; Sabine & E. T. R Co. v. Joachimi, 58 Tex. 456; Burr's Ferry, B. & C. R. Co. v. Allen, Tex.Civ.App., 149 S.W. 358; Davis v. Standard Rice Co., Tex.Civ.App., 293 S.W. 593, (er.dis.); 13 T. J. p. 73, Sec. 7; 25 C.J.S., Damages, § 17, p. 471. Appellee Newsom testified in substance that he had not used water from his well for human...