Cain v. Fontana

• Decision Date: 13 December 1967
• Docket Number: No. 14639,14639
• Citation: 423 S.W.2d 134
• Court: Texas Court of Appeals
• Parties: Chas. M. CAIN, Appellant, v. Salvatore FONTANA, d/b/a Fontana's Cafe, Appellee. . San Antonio

Page 134

423 S.W.2d 134

Chas. M. CAIN, Appellant, v. Salvatore FONTANA, d/b/a Fontana's Cafe, Appellee.

No. 14639.

Court of Civil Appeals of Texas.

San Antonio.

Dec. 13, 1967.

Rehearing Denied Jan. 17, 1968.

Pepos S. Dounson, San Antonio, for appellant.

Tom Joseph, Joseph Chacon, Jr., San Antonio, for appellee.

KLINGEMAN, Justice.

Action by Salvatore Fontana, d/b/a Fontana's Cafe, against Chas. M . Cain for malicious trespass on realty and damages for restoration, loss of profits and exemplary damages. The parties will be herein referred to as designated in the trial court. Trial was to a jury.

The special issues submitted were answered substantially as follows: (1) Defendant caused debris to be placed on property belonging to plaintiff. (2) Plaintiff sustained a loss of business as a result of the debris being placed on his property, and (3) that $250.00 would reasonably compensate plaintiff for such loss of business. (4) The sum of $125.00 would reasonably compensate plaintiff for his expense in having such debris removed. (5) The surface of the parking area of plaintiff's cafe was damaged as a proximate result of the removal of the debris, and (6) that the sum of $150.00 would reasonably compensate plaintiff for his expense in resurfacing such property. (7) Defendant was activated by malice in causing the debris to be placed upon such premises. (8) Plaintiff should be allowed the sum of $1,000.00 as exemplary damages. A remittitur of $50.00 was made by plaintiff in connection with the jury's award of $150.00 for restoration of the surface. Judgment was entered for plaintiff in the amount of $475.00 actual damages, and $1,000.00 exemplary damages.

Plaintiff was the owner and operator of a cafe, known as Fontana's Cafe, located on Broadway in San Antonio, Texas. The evidence shows that the principal parking area of such business was to the rear of his cafe. During the month of May, 1966, defendant caused large dump trucks loaded with concrete blocks, debris and other junk which was being removed from a building in San Antonio not owned by defendant, to be dumped on such parking area to the rear of plaintiff's cafe, which concrete blocks and debris remained on said premises until removed by plaintiff about June 1, 1966. The testimony further shows that the rock and debris were so placed as to make a large portion of such parking area inaccessible.

Defendant asserts that the trial court erred in admitting into evidence three deeds of conveyance into Salvatore Fontana pertaining to the property, and in allowing the custodian of deeds and record books of the Bexar County Clerk's Office to testify as to the contents of such deeds, over defendant's objection that there was no proof of execution or authentication of such deeds, and that the requirements of Articles 3726 and 3726b, Vernon's Ann.Civ.St., as to the giving of three days notice had not been complied with; that such custodian of deeds was not testifying from personal knowledge; and that such testimony was in violation of the best evidence rule. Plaintiff alleged that he was the owner of the property involved, and testified that at and before the alleged trespass he was in possession of such premises. This is not a suit in trespass to try title, but is a tort action for actual and exemplary damages for malicious trespass. The action for trespass is designed to protect the interest in exclusive possession of the land involved in its intact physical condition, and any person in actual and exclusive possession of the property may maintain such action. Prosser, Law of Torts, Intentional Interference with Property, p. 68. Further, it is well settled in Texas that the party in possession of land is considered to be the owner until the contrary is proved, and that his possession imports that he holds a title thereto. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152 (1937); State v. Lain, 339 S.W.2d 272 (Tex.Civ.App.--Waco, 1960, affirmed 162 Tex. 549, 349 S.W.2d 579, 1961). The error of the court, if any, in admitting such deeds into evidence and allowing the custodian of deeds to testify as to their contents was harmless.

Defendant also maintains that the trial court erred in refusing to set aside and disregard the jury's answers pertaining to loss of business as a result of such debris, on the grounds that there was no evidence, insufficient evidence, and that such answers could only be based on conjecture, prejudice, or bias. Plaintiff's bookkeeper testified he had been doing plaintiff's accounting for several years, and that according to his compilations plaintiff's business had a net profit of $533.31 in January, 1966, a net profit of $565.17 in February, 1966, a loss of $188.95 in April, 1966, a loss of $441.57 in May, 1966 (the month of the trespass), a loss of $78.80 in June, 1966, and a loss of $307.59 in July, 1966. He did not testify as to the net profits in March, 1966. He further testified that, according to his compilations, plaintiff's gross income for the months of January, February, March, April, June and July of 1966 were approximately $2,000.00 a month, and that in May (the month of the trespass) his gross income was $806.65. There was testimony by plaintiff that he lost business in May after the debris was placed on the property. Defendant contends that since the testimony of such accountant shows that plaintiff had a loss for the month immediately preceding the trespass and for the two months after the trespass that such business was a losing business and plaintiff could not be entitled to damages for loss of profits, and further contends that the amount of any loss was not shown with reasonable certainty and there was not sufficient data to compute probable losses. The record discloses that plaintiff had maintained such business for a number of years and such business was an established and going business. A loss occasioned by an interference with one's business from the actionable conduct of another is a proper element of damages, and profits lost as a result of such interference are properly recoverable in a tort action. In such an action, while it is necessary that the damages be shown with reasonable certainty, pre-existing profits, together with other facts and circumstances, may be considered in arriving at a just estimate of the amount of profits lost. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Belcher v. Bullion, 121 S.W.2d 483 (Tex.Civ.App.--Austin 1938, no writ); 17 Tex.Jur.2d, Damages §§ 147, 149 (1960). Under the facts of this case it cannot be said, as a matter of law, that plaintiff is not entitled to a recovery for loss of business, and the jury's finding of $250.00 damages is sufficiently supported by the evidence.

Defendant also contends that the trial court erred in refusing to set aside and disregard the jury's answer pertaining to damages to the surface of the parking area, asserting that such damage to the surface was caused by an independent contractor, McLeod, who was employed by plaintiff to move off the debris, and defendant is not responsible for such damage. McLeod testified that in order to move off such massive rocks and other debris placed on the premises by defendant it was necessary to use large equipment, including a winch-truck and front-end loader, and further testified that it was not possible to remove such rocks and debris without damaging the surface. When asked what would be a fair and reasonable cost for restoring such property back to its original condition, he stated that he wouldn't mess with it for less than about $100.00, and that he couldn't move the necessary equipment over there for less than that amount. In the case of temporary damage to realty the cost of restoring the property to its former condition is recoverable. City of Abilene v. Walker, 309 S.W.2d 494 (Tex.Civ.App.--Eastland 1958, no writ); 17 Tex.Jur.2d, Damages § 69. See also Hillman v. Baumbach, 21 Tex. 203 (1858); Prosser, Law of Torts, Trespass to Land,...