Cy Carney Appliance Co. v. True

• Decision Date: 12 November 1956
• Docket Number: No. 5-1028,5-1028
• Citation: 295 S.W.2d 768,226 Ark. 961,61 A.L.R.2d 1264
• Parties: , 61 A.L.R.2d 1264 CY CARNEY APPLIANCE COMPANY, Inc., Appellant, v. Ed TRUE and Maxine True, Appellees.
• Court: Arkansas Supreme Court

Page 768

295 S.W.2d 768

226 Ark. 961, 61 A.L.R.2d 1264

CY CARNEY APPLIANCE COMPANY, Inc., Appellant, v. Ed TRUE and Maxine True, Appellees.

No. 5-1028.

Supreme Court of Arkansas.

Nov. 12, 1956.

Rehearing Denied Dec. 17, 1956.

Little & Enfield, Bentonville, Pearson & Pearson, Fayetteville, for appellant.

Vol T. Lindsey, Bentonville, for appellees.

WARD, Justice.

On September 29, 1953, appellees' dwelling and the contents thereof were destroyed and a number of shade trees were destroyed or damaged by fire. Appellees filed a suit against appellant, the Cy Carney Appliance Co., alleging the fire was caused by the negligence of Virgil Blakely, a company employee, in filling a butane gas tank near their home, causing the alleged destruction and damage in the total amount of $13,394.33. A jury verdict was returned in favor of appellees in the amount sued for, and this appeal follows:

For a reversal, appellant relies on four alleged errors committed by the court during the trial, and also on the ground that the testimony does not show proximate cause of the fire or negligence on the part of appellant or its agent. We will consider these five assignments of errors in the order they are presented to us.

1. Appellees' testimony shows that part of personal property consisted of certain articles which they had bought for their two minor children, such as a basketball, a baseball, bat, and glove. Mr. True, in speaking about an item of $750 for clothing, dresses, coats, hats, suits, and dress material, stated that some of it belonged to the boys. It is not denied that appellees bought and paid for all such articles.

It is contended by appellant that, since the boys were not made parties to the suit through a guardian or next friend [as provided in Ark.Stats. § 27-823], there could be no recovery for the articles in question. We do not agree with this contention. The parents were in fact the owners of these articles. They possessed all the incidents of ownership--they paid for them, they could have taken them away from the boys, and they could have sold them. While our attention has not been called to any decisions of this court announcing the above view, we do find such decisions from other courts. In Semple School for Girls v. Yielding, 16 Ala.App. 584, 80 So. 158, it was held that articles given to children by parents for support and maintenance remain the parents' property, though the children may have them in possession and may have a special property in them as to all the world except the parents. In Dickinson v. Winchester, 4 Cush. 114, 58 Mass. 114, 50 Am.Dec. 760, it was held that clothing purchased by a father for a minor son belongs to the faither, and he may recover for its loss, unless it appears to have been absolutely given to the son, or unless the son has been emancipated. In Tiffany on Domestic Relations--Sec. 140, page 386, it says that what is given to a child by his parents in the way of support and maintenance, and for the purpose of education, as clothing, school books, etc., belongs to the parent, and he may reclaim it, or recover damages for its injury.

2. While Mr. True was being cross-examined as to the value of his personal property he was asked: 'Q. I will ask you whether or not you and your wife assessed that personal property in January, 1953 or immediately subsequent thereto?' His answer was: 'Yes, Sir.' When he was asked for the amount of the assessment, appellee objected and the court sustained the objection. This is assigned as error.

While we agree that this elicited information was, under the circumstances, admissible in evidence, yet we think no prejudice or reversible error appears, because appellant did not show what the answer would have been or what the assessment records would reveal. It was so held in Tidwell v. Southern Engine & Boiler Works, 87 Ark. 52, 112 S.W. 152, 154, where the court said: 'It is not shown in record what the answers of appellant, as a witness in his own behalf, to the excluded questions would have been. Therefore no prejudice appears in the exclusion.' A similar situation was presented in City of Prescott v. Williamson, 108 Ark. 500, 158 S.W. 770, and disposed of in these words:

'It is not shown what the answers of any of the witnesses to any of these questions would have been. The appellant nowhere stated what it expected to prove by either of them. Conceding without deciding that the questions were proper and that the answers thereto would have been competent testimony, we are not able to say that any prejudicial error was committed in refusing to allow the witnesses to answer them, since the record does not disclose what their answers would have been.'

3. Appellant objects to the rule [applied by the trial court] for the measure of damages as pertaining to trees and the house, and to Instruction No. 8.

Trees. The testimony of appellees was that valuable shade trees were destroyed, and that the market value of the farm, after the fire was $1,000 less than it was immediately before the fire because of said loss. The court instructed the jury that this was the proper measure of damages, and the court was correct. It was expressly so held in St. Louis, Iron Mountain & Southern Railway Company v. Ayres, 67 Ark. 371, 55 S.W. 159. At page 374 of 67 Ark., at page 160 of 55 S.W., this Court stated:

'As to the measure of damages for the destruction of the trees on the land by reason of the fire, we think the fifth instruction by the court announced the proper measure; that is that the measure was the difference between the value of the land with the trees unburned and with the trees burned. This means the market value of the land. The trees were a part of the freehold, and could not be replaced in a short time, and only at considerable expense. Coykendall v. Denkee [Durkee], 13 Hun [N.Y.] 260. The destruction of the trees was a depreciation in the value of the land of which they were part, and it was competent to show by evidence what the land was worth before the destruction of the trees, and what it was worth after they were destroyed; and, this being shown, the quantum of damages was a matter of computation for the jury. 3 Suth.Dam. 612; Coykendall v. Denkee [Durkee], 13 Hun [N.Y.] 260; [Fayetteville & L.] Railway Co. v. Combs, 51 Ark. 324, 11 S.W. 418.'

The same rule, as to the destruction of trees, was announced in Bush v. Taylor, 130 Ark. 522, 197 S.W. 1172, 7 A.L.R. 262; and in the cases cited therein.

House. Appellees offered certain testimony, and apparently would have offered more had appellant not objected, to show the construction, size, condition and value of the house before it was destroyed. Appellant says this testimony was inadmissible, but we do not agree for the reasons set out below.

Instruction No. 8. In paragraph 'B' of this instruction the court gave as the measure of damages [for loss of the house] the 'cost to restore the dwelling house to its original condition, that is to say the cost of replacement.' By 'original condition' we take it that the court meant the condition it was in immediately before the fire, and will so consider it since no specific objection is made on that point.

Appellant's contention is that the instruction is erroneous, and that the true measure of damages is the difference between the market value of the farm [with the house on it] just before the fire and the market value just after the fire, considering loss of house only. We have given careful consideration to appellant's contention and to many of our decisions relating thereto, and, although there is a lack of a clearly...