Gerhart v. Harris County

• Decision Date: 26 October 1922
• Docket Number: (No. 824.)
• Citation: 244 S.W. 1103
• Parties: GERHART et al. v. HARRIS COUNTY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

244 S.W. 1103

GERHART et al. v. HARRIS COUNTY et al.^*

(No. 824.)

Court of Civil Appeals of Texas. Beaumont.

October 26, 1922.

Rehearing Denied November 15, 1922.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Action by Maggie Gerhart and others against the County of Harris and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Taliaferro & Sonfield, of Houston, for appellants.

Louis, Campbell & Nicholson, of Houston, for appellees.

WALKER, J.

We take the following statement of the nature of this suit from appellee's brief:

"Appellants — plaintiffs in the trial court — sued Harris county for damage to crops in the years 1918 and 1919, alleging that such damage was occasioned by the negligence of the county in shelling the Clinton Road, and removing and replacing culverts along the road near their property.

"The county answered with general demurrer and general denial, especially denying the allegations of negligence contained in plaintiffs' petition; and impleaded the Harris County-Houston Ship Channel navigation district, alleging that if plaintiffs' crops had been damaged, such damage was occasioned by the dredging operations of said navigation district on Buffalo bayou, in dumping the spoil taken from the bayou out upon the adjoining land, and filling up the ditches draining into the bayou."

Appellees' demurrers were overruled and the case proceeded to trial before a jury. At the conclusion of the evidence they moved for an instructed verdict, which was denied. Thereupon the case was submitted to the jury on the following special issues, which were answered as indicated:

(1) "Were plaintiffs' lands caused to be overflowed and the overflowed waters held thereon in the years A. D. 1918 and 1919 by reason of the county road in question being constructed and maintained where it was and in the manner it was? You will answer, `Yes,' or, `No,' as you find the fact to be." Answer: "Yes."

(2) "Did such waters, so caused to be overflowed and held on plaintiffs' lands, destroy any crops of plaintiffs on such lands which otherwise would not have been destroyed? Answer, `Yes,' or, `No,' as you find the fact to be." Answer: "Yes."

(3) "What would have been the value of such crops when matured and ready for sale, less the expense of such cultivation, as well as the cost of its preparation and transportation to market? You will here state the amount according as you may find it to be." Answer: "$1,090.00."

(4) "Was any hay of plaintiffs', in barn, destroyed by such overflow waters so caused by said road in the years 1918 and 1919, or either of those years? Answer, `Yes,' or, `No,' as you find the fact to be." Answer: "Yes."

(5) "What was the reasonable market value of such hay at the time and place same was destroyed? Answer by stating the amount." Answer: "132.50/100."

(6) "Were plaintiffs deprived of the use and rental value of their tenant houses on their lands during any time in the years 1918 and 1919 by reason of the overflow and holding of water on their lands caused by the county road being constructed and maintained as it was? Answer, `They were,' or `They were not,' as you find the fact to be." Answer: "No."

(7) "What was the reasonable value of the use or rental value of which plaintiffs were so deprived? Answer by stating the amount." Answer: "None."

(8) "If you have answered special issue No. 1 in the affirmative, and in that event only, then you will state: In what sum were plaintiffs damaged on account of sickness and ill health due to water backing up and standing upon their property? You will here state the amount according as you may find it to be." Answer: "$300.00."

(9) "If you have answered special issue No. 1 in the affirmative, and in that event only, then you will state: In what sum were plaintiffs damaged by reason of being deprived of the free use and enjoyment and ingress and egress to and from their property due to water backing up and standing upon same? You will here state the amount according as you may find it to be." Answer: "None."

(10) "If you have answered special issue No. 1 in the affirmative, and in that event only, you will state: What was the cost to plaintiffs herein of the necessary fertilizer used upon said land and necessary to make it fit for cultivation after said land had been soured due to water backing up and standing upon same? You will here state the amount according as you may find it to be." Answer: "110.00."

On the return of the verdict, appellees moved to set aside the verdict, which motion was overruled. Then appellants and appellees filed motions that judgment be entered in their behalf. Appellants' motion was denied, to which they except, and judgment was entered in favor of appellees, notwithstanding the verdict. To these orders appellants duly excepted, and predicate their appeal upon assignments of error based upon the refusal of the court to enter judgment in their behalf and on the judgment entered non obstante veredicto. By cross-assignments, Harris county complains of the insufficiency of appellants' petition, and the refusal of the court to submit to the jury the issue of whether appellants' damage was occasioned by excessive rainfall and the dredging operations of the Harris County-Houston Ship Channel navigation district, and of the admission and sufficiency of the following evidence on plaintiffs' measure of damages:

(a) Edward Brown testified:

"I had occasion during the year to buy Irish potatoes on the open market; I paid $3.50 a bushel for them. In 1919 I had occasion to purchase Irish potatoes, and I paid $5.50 a bushel. In 1918 I bought the Irish potatoes from B. A. Passmore, over here in the fifth ward; and I bought them from B. A. Passmore in 1919, also. I have been dealing with him about eight years. I buy all my groceries and feed from him.

"During 1918 I had occasion to purchase sweet potatoes and bought them at B. A. Passmore's, and paid $2.25; in 1919 I paid $3.75 a bushel.

"In 1918 I had occasion to purchase corn, and I purchased it from B. A. Passmore, and paid $2.15 a bushel; it cost me $4.30 a sack, that is, a two-bushel sack. (In reply to defendant Harris county, witness stated this was shelled corn.) In 1919 I purchased corn from B. A. Passmore, and paid $2.35 a bushel; it cost me $4.10 a sack. I fatten my winter hogs all the time, and I always use it for my chickens, and I kept it there for them."

Appellees make the statement in their brief, which is not controverted by appellants, that this was "the only evidence offered by appellants to establish the market value of the corn and potato crop which they allege to have been grown upon the land during 1918 and 1919."

(b) J. F. Burwell, secretary of the Houston Cotton Exchange, testified as to the market value of cotton for 1918 as follows:

"I am familiar with the market value of cotton in Houston. I have a memorandum that I took from the financial records of the Exchange for September 3, 1918. My recollection is that they were the highest prices for the year. On September 3, the basis price for middling in Houston was 35.75 cents per pound, and my recollection is that those were the highest prices for that year."

(c) On the cost of raising and marketing the crops, appellants offered the following testimony:

Charles Oates testified as follows:

"I have been a farmer all my life. I am acquainted with the cost of raising and getting a crop to market, to the Houston market, that is, some parts of the crop, what I generally raised; I am acquainted with that; I have raised cotton and corn and potatoes, also sweet potatoes and Irish potatoes. It costs about one-third of the value of the crop for planting, plowing, harvesting, and getting it to the market at Houston from my place. If the gross yield would be, for instance, $2,500, the net would be obtained after deducting one-third. * * *

"The cost of plowing the land and getting it in shape for planting, and of planting it and of cultivating it, and of harvesting it, and of getting it in shape to sell, depends upon how he works it, I suppose; how he worked it would depend upon the state of the soil itself — how much he would have to work it, whether it was wet or dry, or whether it was sandy soil or whether it was black soil. It would also depend upon whether he worked it at the right time with reference to weeds in it. The cost of planting and cultivating it and harvesting it would depend largely upon the cost of labor; it would depend in part upon the cost of feed that he had to feed his teams in doing that work if he had any feed to buy. It would also depend upon whether he had teams of his own or had to hire teams. The cost of labor makes up the larger part of the cost of planting and cultivating and harvesting a crop. I think the cost of labor was about the same during the years 1918 and 1919; it is cheaper now than it was then; I would say it is about 20 per cent. cheaper; we can get men now for $1 a day, and then I had to pay $3 per day.

"I know that cotton is way down now. During that time I think it was about 40 cents; now if it is worth 12 cents, it would be less than one-third the value. I do not know whether the price of cotton was the same throughout those two years. I think the price of labor was about the same during these two years. The total return that a farmer would get for his crop would depend also upon whether the conditions were so good that he would raise a bumper crop or whether he would raise only a short crop. In plowing his ground for planting and in planting the crop, and in cultivating it, the expense would be the same, for the same quantity of ground, whether he finally raised a bumper crop or a short crop. If he gave it the same cultivation in preparing the ground for planting, and in planting it, and cultivating and harvesting it, I don't know whether the proportionate expense would be much greater if he raised a bumper crop than...