Community Public Service Co. v. Gray

• Decision Date: 03 June 1937
• Docket Number: No. 3536.,3536.
• Citation: 107 S.W.2d 495
• Parties: COMMUNITY PUBLIC SERVICE CO. v. GRAY.
• Court: Texas Court of Appeals

Page 495

107 S.W.2d 495

COMMUNITY PUBLIC SERVICE CO. v. GRAY.

No. 3536.

Court of Civil Appeals of Texas. El Paso.

June 3, 1937.

Appeal from District Court, Pecos County; Jos. G. Montague, Judge.

Action by Calvin Gray against Community Public Service Company. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded.

R. D. Blaydes, of Fort Stockton, and Bennett L. Smith, of Fort Worth, for appellant.

Hart Johnson and Travers Crumpton, both of Fort Stockton, for appellee.

NEALON, Chief Justice.

Plaintiff (appellee in this court) sued defendant (appellant) for damages alleged to have been occasioned to plaintiff through the negligence of defendant, acting through its agent, W. C. Barnett. It was alleged that a bottle-filling machine in plaintiff's bottling plant at Fort Stockton had been so damaged through the negligence of defendant's said representative as to impair its market value to the extent of $1,400, and that plaintiff was further damaged through loss of anticipated profits in the sum of $1,200.

The case was submitted upon special issues, in response to which the jury found that defendant was negligent in the manner alleged; that plaintiff was not guilty of contributory negligence; and that the negligence of defendant was the proximate cause of the injury to plaintiff's bottle-filling machine, which resulted in damage to plaintiff in the sum of $300 by reason of the injury to the machine, and $615.50 in loss of profits occasioned directly and proximately by said injury. Judgment was accordingly rendered in favor of plaintiff and against defendant for $915.50.

From this judgment, defendant appeals.

Briefly stated, the facts were these: Defendant is and was on and prior to August 26, 1935, engaged in the business of supplying electric current for power and lighting purposes to the general public in Fort Stockton. Plaintiff was at said time and prior thereto engaged in the business of making and selling Nehi, a carbonated water beverage. He manufactured this beverage in his bottling plant at Fort Stockton and purchased from defendant the electric power that operated the machinery in his plant — part of which was an automatic bottle-filling machine.

W. C. Barnett, an employee of defendant, while engaged in the performance of his duties, changed the meter at plaintiff's bottling plant during the afternoon of August 26, 1935. When he went to the plant it was closed and the door was locked. He got Bill King, an employee of plaintiff, to admit him to the building. Barnett took the meter off the wall and put in a new meter. He testified that he told Bill King that it would be necessary to start the motors to see in what direction they ran; that he asked King if he understood how to operate the machine; that King started the bottle-washing machine (he supposed) and also the bottle-filling machine, and reported that they were all right.

Plaintiff testified that the bottle-filling machine was in proper working order on August 26th; that about 11 o'clock on the night of August 26th he visited the plant preparatory to commencing bottling operations at midnight; that when he started the bottling machine it locked in operation and the dial on which the bottles were placed cracked; that he and others worked through to the 28th attempting to repair the machine, and found that the flywheel was running in reverse; he got Barnett to the plant; Barnett switched the places of two wires and the motors once again ran forward. However, plaintiff said, parts of the machine were broken and it would not work; that there was another breakdown in about three weeks; that the machine's efficiency was decreased and it has never been restored to full efficiency.

There was considerable testimony as to the volume of business and loss of business which we will not now restate, but to which we will advert if and when necessary in the discussion of the questions involved.

Opinion.

Appellant urges fifty-three assignments of error supported by forty-three propositions. Necessarily, therefore, our discussion of the individual issues presented will not be extensive, though all have been considered.

The first five assignments complain of the court's refusal to instruct a verdict in favor of defendant. They are without merit. Under the uncontradicted evidence, Barnett was the representative of defendant in changing the meter. Apparently, it was changed at defendant's instance. It had sole control of the operation. Before the change the machine was operating normally; thereafter the filling machine operated backwards and locked. The trouble then began. When Barnett thereafter changed a couple of wires in the meter, said machine operated in the usual manner. Henry Jones testified that running in reverse could break practically every part of a filling machine. Dunagan testified that reverse running would break the housing. Cecil Moore likewise said that operation in reverse would break certain parts. Plaintiff testified to reduced market value of the filling machine after the injury and to loss of anticipated profits resulting from its decreased efficiency. He testified, also, that the reverse operation caused the injury to the machine. The evidence was sufficient.

Defendant excepted to plaintiff's allegation that he cleared a profit of 50 cents per case upon the Nehi he bottled and sold, and would have made a profit of 50 cents per case upon 2,400 cases that he would have sold but for the breaking of the machine. The exception should have been sustained. Defendant was entitled to know from plaintiff's pleadings upon what facts he based his allegations of lost profits; it was entitled to be informed of the cost of production and delivery and the elements that made up such cost.

Assignments 11 to 23, inclusive, challenge the action of the court in excluding portions of letters written Cecil Moore, a former business associate of appellee. They were offered upon the theory that they contradicted certain testimony of plaintiff, which was stated to be that practically all of his sales were for cash. Referring to the statement of facts, we find that the question was asked plaintiff if he did not answer, when his oral deposition was taken, that practically all of his sales were for cash. No time was fixed by the question. He was asked if "he collected it," and replied, "Most of it." These letters refer to three or four who either did not pay or were slow, and to difficulties plaintiff was having financially. They do not contradict the testimony of plaintiff as to profits upon sales made, nor do they indicate that plaintiff's troubles were due to a failure to sell profitably such products as he was able to manufacture. The assignments are overruled.

The court's error in admitting plaintiff's conversation with W. C. Hodges was harmless. The statement objected to was that Barnett had told Hodges that he (Barnett) did not seal the meter, that all the motors would run backward. Alleged liability was not predicated upon a failure to seal the meter. The statement does not contradict the testimony of Barnett as to his opinion with respect to the motors. However, the conversation should have been excluded.

Appellant's twenty-fifth assignment was directed to the action of the court in permitting plaintiff to testify that he knew the market value of the bottle-filling machine at Fort Stockton, Tex., before and after the breakdown of August 26, 1935. Plaintiff was experienced in the business of operating such machinery, was familiar with business conditions in Fort Stockton, was apparently in touch with distributors of the equipment involved in the controversy, and was positive as to what it would cost to reproduce the machine in its condition prior to the breakdown. Certainly he was in better position to judge of the value of the machine than were those who lacked his training and experience, and whose interests did not require or enable them to acquire this knowledge. His opinion, therefore, had value. Provided the evidence shows the machine had a market value at Fort Stockton at the time inquired about, we cannot say that the court abused its discretion in admitting the testimony. In any event, from the evidence he appeared qualified to express an opinion as to the intrinsic value of the machine. Rogers & Adams v. Lancaster (Tex.Com. App.) 248 S.W. 660; Bettis v. Bettis (Tex. Civ.App.) 83 S.W.(2d) 1076; Galveston, H. & S. A. Ry. Co. v. Rheiner (Tex.Civ. App.) 25 S.W. 971; Niagara Fire Ins. Co. v. Pool (Tex.Civ.App.) 31 S.W.(2d) 850; Southern Traction Co. v. Hulbert (Tex.Civ. App.) 177 S.W. 551; Ft. Worth & D. C. Ry. Co. v. Hapgood (Tex.Civ.App.) 210 S.W. 969. The evidence required the submission of the issue of "actual" or "intrinsic" value, rather than market value, since it was not shown that there was actual buying and selling of such machines on the Fort Stockton market. Black v. Nabarrette (Tex.Civ.App.) 281 S.W. 1087. "All of the definitions [of market value] presuppose a concensus of buyers and sellers, a current price and numerous sales." McGilvra v. Minneapolis Ry. Co., 35 N.D. 275, 159 N.W. 854, 858. See, also, Souther v. Hunt (Tex.Civ.App.) 141 S.W. 359; Burr's Ferry, etc., Co. v. Allen (Tex.Civ.App.) 149 S.W. 358; Missouri, K. & T. Ry. Co. v. Murray (Tex.Civ.App.) 150 S.W. 217; Stanley v. Sumrell (Tex.Civ.App.) 163 S. W. 697.

Assignments 26, 27, 28, and 29 complain of the exclusion of opinion testimony of J. C. Dunagan as follows: (1) As to the manufacturing cost of soda water at Fort Stockton; (2) that the cost of delivery to various named towns would be "prohibitive"; (3) "I would not want to go over seventy-five miles," in answer to a question as to how far soda...