Foster v. Burgin

• Decision Date: 28 June 1922
• Docket Number: (No. 1923.)
• Citation: 244 S.W. 244
• Parties: FOSTER v. BURGIN.
• Court: Texas Court of Appeals

244 S.W. 244

FOSTER v. BURGIN.

(No. 1923.)

Court of Civil Appeals of Texas. Amarillo.

June 28, 1922.

Rehearing Denied October 11, 1922.

Appeal from District Court, Carson County; W. R. Ewing, Judge.

Action by Fred Burgin against R. T. Foster. From judgment for the plaintiff, defendant appeals. Affirmed.

Kimbrough & Kimbrough and Underwood & Jackson, all of Amarillo, for appellant.

Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee.

HALL, J.

Appellee, Burgin, sued appellant, Foster, to recover damages growing out of a collision between the automobiles of the parties, at a turn in the public road. Appellee alleged, in substance, that about the 2d day of April, 1920, he and appellant were traveling in opposite directions on a country road in Carson county, and as their automobiles approached a turn in the road a collision occurred which was due to reckless, careless, and negligent driving on the part of appellant, in that he was driving faster than is allowed by law, and was driving on the left side of the road, cutting the corner; that plaintiff had his wife, child, and mother-in-law in his car, and as a result of the collision, caused by the careless and negligent driving of the appellant, his wife and mother-in-law were injured, the injuries to his mother-in-law resulting in her death; that he paid as funeral expenses of his mother-in-law $500 and doctors' bills in the sum of $200; that his car was damaged in the sum of $1,700, and his wife suffered damages in the sum of $1,000. In addition to general demurrer, special exceptions, and general denial, the appellant pleaded contributory negligence on the part of appellee, in that appellee failed to give one-half of the road or to sound signal of his approach, and that plaintiff's wife, who was inexperienced, had charge of and was driving the car, and but for such negligence the collision would not have occurred. The case was submitted to a jury upon special issues, the substance of the material findings being as follows: (1) That the collision between plaintiff's and defendant's cars was not an accident; (2) that defendant was guilty of negligence in the operation of his car; (3) that such negligence was the proximate cause of the collision; (4) that the market value of plaintiff's car immediately before the collision was $1,550; (5) that such value immediately after the collision was $500; (6) that the plaintiff's wife did not suffer any physical injury; (9) that plaintiff's mother-in-law did not suffer any physical injury by reason of the collision; (12) that the injuries received by the mother-in-law were not the proximate cause of her death; (14) that the plaintiff was not guilty of contributory negligence in the handling and operation of his car at the time of the collision.

The first contention in the brief of appellant is that the evidence is not sufficient to sustain the verdict as to the amount of damages to the car fixed by the jury, in the sum of $1,050. The appellee stated twice that he knew and was able to testify as to the market value of his car immediately before and immediately after the collision. His testimony on cross-examination is:

"Yes, sir; I have testified that I know the value of second hand cars, and I still say I knew and know the market value of cars."

The rule is that when a witness states that he knows the market value he is prima facie qualified to state such value. P. & N. T. Ry. Co. v. Porter (Tex. Civ. App.) 156 S. W. 267; Byrd Irrigation Co. v. Smyth (Tex. Civ. App.) 157 S. W. 260; Davis v. Fain (Tex. Civ. App.) 152 S. W. 218; C., R. I. & G. Ry. Co. v. Jones (Tex. Civ. App.) 118 S. W. 759; El Paso, etc., Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988. These authorities hold that a nonexpert witness, who is familiar with the property or the facts, may give his opinion although he may not be able to qualify as an expert. The first cases cited are peculiarly applicable to the facts of the instant case. The appellant did not, on cross-examination, attempt to show any facts from which the court could determine that Burgin did not know the market values testified to; he was not asked as to the source or means of his knowledge; no inquiry was made as to whether he had investigated for the purpose of ascertaining the value of secondhand cars in that vicinity, nor whether he had bought or sold any secondhand or damaged cars, or knew of any such sales near the time of the accident. His unequivocal statement that he knew the market value renders him prima facie a competent witness. His opinion as to such market value is further admissible when, in connection with such opinion, he states the facts upon which it is based. G., C. & S. F. Ry. Co. v. Richards, 83 Tex. 203, 18 S. W. 611; C., R. I. & G. Ry. v. Faulkner (Tex. Civ. App.) 194 S. W. 651. Burgin testified at considerable length, giving the facts upon which he based his opinion. His testimony in part is as follows:

"The car had been driven just 810 miles. I purchased it new. Immediately before the accident that Hupmobile of mine was practically as good as new, and I believe the reasonable market value of it was $1,760, because that is what I paid for it and the car had been run only 810 miles. The car having been run that long, I am familiar with the reasonable market value of the car before the accident, and such value was $1,760. I considered it as good as a new car. Immediately after the car was repaired I could not get $260 on it, as it lacked quite a bit of running as good as it did before the accident. It never guided as good, and it seemed that there was kind of a grind in the gears all the time. Yes, sir; I am able to state the reasonable market value of this car after it had been repaired. It was not worth very much, and I would say it was reasonably worth, after it was repaired, $260. The collision in fact tore my automobile all up. Of course there was no wood about it except the flooring, and it cracked that quite a bit, and the frame of the seat. One tire punctured, and the inner tube burst. It broke the glass out of the wind shield, tore one hanger off the radiator, bent one fender up, bent the front axle, tore the front spring loose, and I had to get new...