Dallas Hotel Co. v. Newberg

• Decision Date: 09 December 1922
• Docket Number: (No. 8717.)
• Citation: 246 S.W. 754
• Parties: DALLAS HOTEL CO. v. NEWBERG.
• Court: Texas Court of Appeals

246 S.W. 754

DALLAS HOTEL CO. v. NEWBERG.

(No. 8717.)

Court of Civil Appeals of Texas. Dallas.

December 9, 1922.

Rehearing Denied January 13, 1923.

Appeal from Dallas County Court at Law; T. A. Work, Judge.

Action by D. T. Newberg against the Dallas Hotel Company Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Murphy W. Townsend, Louis H. Porter, and Martin B. Winfrey, all of Dallas, for appellant.

Rasbury, Adams, Stennis & Harrell, of Dallas, for appellee.

VAUGHAN, J.

Appellee objects to the consideration of appellant's assignments of error on the grounds that —

"(1) If it was error for the trial court not to submit to the jury the question of appellee's credibility, such error was invited by appellant presenting and urging the granting of a peremptory instruction, which, if granted by the trial court, would have withdrawn the case from the jury and instructed the jury to return a verdict in favor of appellant, and appellee insists that by reason thereof appellant is estopped from now claiming that the question of appellee's credibility should have been submitted to the jury. (2) Appellant failed to request the trial court to submit any issue to the jury."

Appellant requested the following charge, which was refused: "You are instructed to render a verdict herein for the defendant." No other request was made by appellant.

The court instructed the jury to return a verdict in favor of appellee for $158. The error invited was one in favor of appellant, and by no means in favor of appellee, and it is only where a party to a suit has invited error by instructions requested against his interest that the doctrine announced in the case of Nagle v. Simmank, 116 S. W. 862, applies. It would certainly be, in our judgment, contrary to a reasonable application of the rule invoked to extend same so as to embrace instructions inviting error only in the interest of the party requesting same, and not presenting for the determination of the jury an issue in the case supported by evidence which would justify the jury to find in favor of either party to the suit. Therefore said objections are overruled.

This appeal presents but one question, to wit, appellant contends that it matters not how positive and uncontradicted the testimony of an interested party may be, the question of his credibility must be submitted to the jury.

As shown by the transcript of proceedings had in the justice court, precinct No. 1, Dallas county, appellee filed his suit in said court to recover the value of certain wearing apparel, alleging that between May 15 and May 19, 1920, he was a guest at the Adolphus Hotel, owned and operated by appellant, and that during said period of time the following property, of which he was the owner: One suit of clothing and seven shirts of the reasonable cash value of $158 — was stolen and unlawfully taken from the room occupied by him at said hotel, and on the 7th day of October, 1920, recovered judgment therein for $158, from which appellant prosecuted an appeal to the county court of Dallas county at law. On the trial in the county court, judgment was again rendered in favor of appellee, from which this appeal is prosecuted.

The trial court peremptorily instructed the jury to find for appellee in the sum of $158, being the full cash value of said property as alleged by appellee.

The only evidence before the jury was that of appellee, as follows:

"I was a guest at the Adolphus Hotel from about the 15th day of May to about the 20th day of May, 1920. I frequently stopped at the Adolphus prior to this occasion, and on or about the 15th of May, 1920, I registered at the Adolphus Hotel in Dallas, Tex., and called for a room, and was assigned to room 539 by the clerk of the hotel then on duty. I was given the key to this room. I had baggage on that occasion and my baggage was carried to my said room by the employés of the Adolphus Hotel on said occasion. I occupied this room for several days. While I was occupying said room some of my baggage was stolen therefrom on said occasion. I did not discover that my clothing had been stolen until May 20, 1920. The clothing which constituted part of my baggage, and which was stolen from my trunk in said room, consists of the following items, to wit: One dark blue suit, invisible stripe, coat, trousers and vest; two madras shirts, pin stripe pattern; two madras shirts, heavy stripe pattern; two madras shirts, one wide stripe and one narrow stripe; one silk shirt, pink, black stripe. I know the reasonable value of said property in Dallas when same was stolen. Said value was as follows: The suit, $110; two pin stripe pattern shirts, $13; two heavy stripe pattern shirts, $13; one wide stripe shirt, $5; and one narrow stripe shirt, $5; and one pink silk shirt, black stripe, $12. I have never been paid or in any way compensated for said property or any part thereof."

Appellee further testified to the following facts concerning the value of said property: That the value given by him was the actual cash value of said clothing; that in some instances the prices given were less than the market value of new goods of the same grade and character; that some of the items were valued at what they actually cost him, and some valued at less than what they cost him; that he had purchased the suit from Gray & Graham, of Dallas, about 8 or 10 months ago (meaning 8 or 10 months prior to the 9th day of September, 1920, the date on which appellee testified by deposition which was used in the trial of this cause), for which he paid $110; that he had never worn the...