Gulf, C. & S. F. Ry. Co. v. Coffman

• Decision Date: 29 March 1928
• Docket Number: (No. 591.)
• Citation: 11 S.W.2d 631
• Parties: GULF, C. & S. F. RY. CO. v. COFFMAN.
• Court: Texas Court of Appeals

11 S.W.2d 631

GULF, C. & S. F. RY. CO. v. COFFMAN.

(No. 591.)

Court of Civil Appeals of Texas. Waco.

March 29, 1928.

On Rehearing. December 20, 1928.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by Deck Coffman, executor, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Nat Harris, of Waco, and Terry, Cavin & Mills, of Galveston, for appellant.

Kyle Vick and Williams, Williams, McClellan & Lincoln, all of Waco, for appellee.

BARCUS, J.

This suit was originally instituted by M. M. Coffman against appellant on January 31, 1923, to recover damages which he claimed to have suffered by reason of his residence located on his farm being burned in July, 1921. In September, 1923, M. M. Coffman was adjudged of unsound mind, and R. C. Coffman, his son, was appointed guardian of his person and estate. In November, 1925, M. M. Coffman died, and Deck Coffman was appointed executor of his estate, and, as such executor, substituted himself as plaintiff in this cause. M. M. Coffman and wife owned 700 acres of land near Crawford adjoining appellant's right of way. Mrs. M. M. Coffman died prior to the time of the fire in controversy, and M. M. Coffman was at said time 81 years of age. R. C. Coffman, as guardian, filed an amended petition, in which he claimed $4,000 damages, being the alleged value of the house and furniture destroyed, and, in addition thereto, sought to recover $100 per month for the loss of the value of its use and occupancy. After the death of M. M. Coffman, appellee, as executor of his estate, amended said petition, and claimed as damages one-half of the value of the house and furniture destroyed, with 6 per cent. interest on the total value of the house from the time of the fire until the death of M. M. Coffman in November, 1925, and 6 per cent. interest on the half belonging to M. M. Coffman until the time of trial. He claimed the value of the use of the house during M. M. Coffman's lifetime was 6 per cent. interest on the total value of the house. The heirs of M. M. Coffman joined in the amended pleading filed by the executor and claimed damages to the extent of one-half the value of the house destroyed, and 6 per cent. interest thereon from the date of the death of their father. The trial court instructed the jury to return a verdict for appellant against the heirs on the ground that their claim was barred by the statute of limitation, and there is no appeal from this portion of the judgment.

The cause was submitted to a jury on special issues. The jury found that the reasonable value of the house at the time of the fire was $2,500 and the reasonable value of the furniture at said time was $300, and found the amount of interest on each of said items from the time of the fire up to the date of trial. The trial court entered judgment for appellee for $1,400, being half of the total value of the house and furniture destroyed and 6 per cent. interest thereon until the date of M. M. Coffman's death in November, 1925, and 6 per cent. interest on one-half thereof from his death to the date of trial.

To make a proper disposition of this cause, it is necessary to determine what was the measure of damages to which M. M. Coffman was entitled by reason of the house occupied by him as a homestead being burned. As we construe the law, at the time Mrs. Coffman died, her husband, M. M. Coffman had the right to the use and occupancy and was entitled to the rents and revenues during his occupancy of the homestead, being the property on which the residence in controversy was located. He owned an undivided one-half interest in the property, and his children owned the other one-half interest, subject to his right to occupy and enjoy same during his lifetime. M. M. Coffman therefore had a twofold interest in the property — one, the right to use, occupy, and enjoy same, and the other the right to the undivided half interest. He had the power to abandon or renounce his right to occupancy and have the property divided in kind, or, if he abandoned same as his home, his children would have the right to have the property partitioned. The measure of damages for the destruction of the property was unquestionably the value thereof at the time same was destroyed. The method by which this value should be ascertained is a more difficult question. The measure of damage for having been deprived of the use and occupancy of the house should be measured by the value of the use of the property destroyed during the time that M. M. Coffman was deprived thereof. In Lucas v. Lucas, 104 Tex. 636, 143 S. W. 1153, our Supreme Court held that, where the homestead occupied by the surviving widow had been by condemnation proceedings taken away from her for city purposes, the widow was entitled to have said funds derived therefrom reinvested in a home for her to occupy during the remainder of her life. In that case the survivor had no interest in the property, except her life estate. Not only is the survivor entitled to the use and occupancy, but he is also entitled, while he is occupying the premises, to the rents and revenues derived therefrom. Ruble v. Ruble, (Tex. Civ. App.) 264 S. W. 1018, and authorities there cited. The rule seems to be well established that, where a party is deprived of the use of property, his damage is the value of the use thereof to him for the length of time he was deprived thereof. 17 C. J. 785; Powell v. Hill (Tex. Civ. App.) 152 S. W. 1125; Galveston-Houston Electric Ry. Co. v. English (Tex. Civ. App.) 178 S. W. 666; Moore v. King, 4 Tex. Civ. App. 397, 23 S. W. 484; Railey v. Hopkins, 50 Tex. Civ. App. 600, 110 S. W. 779. We think, unquestionably, that M. M. Coffman's measure of damage for having been deprived of the use and occupancy of the residence was the value of its use to him. The trial court's judgment with reference to measure of damages accruing to M. M. Coffman for having been deprived of the use of the property was arbitrarily fixed at 6 per cent. interest on the total value of the property destroyed as found by the jury. Appellant objected to this measure of damages being applied, and we think said objection should have been sustained. The rule applied by the court, in some instances, might be just and a fair compensation. In others it might be a very unjust standard for the measurement of damage. If the residence was worth $100,000, the recovery would be equivalent to $6,000 per year. If, on the other hand, it was worth only $1,000, the recovery would be only $60 per year. We think the better rule is the value of the use of the property to the party who has been deprived thereof. The record shows M. M. Coffman was 81 years of age at the time of the fire, and that 2 years later he was adjudged of unsound mind, and, at the time of his death in 1925, he was 85 years of age. The use of the property to him might have been much more valuable or much less valuable than to persons under different conditions and circumstances.

Appellant contends that the trial court committed error in allowing the jury to fix, as the measure of damages for the destruction of the house, the reasonable value thereof at the time of the fire. It contends that the true measure of damages for the total destruction of a house is the difference in the market value of the entire premises with the house thereon immediately before the fire and without the house immediately after the fire. We overrule appellant's contention. The record shows that the house which was destroyed was located on a 700-acre farm. While our courts hold that a proper rule by which to establish the damage for the burning of a house is to ascertain the value of the premises immediately before and immediately after the fire, still they hold that this is not the exclusive method of establishing the value of the house destroyed. Taylor v. Gossett (Tex. Civ. App.) 269 S. W. 230 (error dismissed); M., K. & T. Ry. Co. v. Mitchell (Tex. Civ. App.) 166 S. W. 126 (error refused); Independent Shope Brick Co. v. Dugger (Tex. Civ. App.) 281 S. W. 600.

Appellant complains of the action of the trial court in permitting the court stenographer to read in evidence the question and answer testimony of R. C. Coffman, given on a former trial. It appears that at a former trial the witness R. C. Coffman was present and testified, and his testimony was taken down by the official court reporter. At the time of the trial from which this appeal is prosecuted, R. C. Coffman was dead. The objection of appellant goes to said testimony as a whole, on the theory that the question and answer testimony of a witness is not admissible, but only the narrative statement thereof can be reproduced. Appellant does not contend that the testimony had not been accurately transcribed, or that the witness did not testify as shown by said stenographic report. We overrule appellant's contention. We think no better reproduction of the testimony of a witness could be had than by having the official court reporter transcribe same in the exact language of the witness. Cooper v. Ford, 29 Tex. Civ. App. 253, 69 S. W. 487; Smith v. State, 60 Tex. Cr. R. 293 131 S. W. 1081. As to whether all of said testimony was admissible is not necessary for us to, and we do not, determine, since the objection went to the testimony as a whole.

Appellant contends that the finding of the jury that the house was of the reasonable value of $3,000 at the time of its destruction is so overwhelmingly against the weight of the testimony that said finding should not be permitted to stand; and further contends that the witness R. C. Coffman was not qualified to testify as to the value thereof. The only testimony offered by appellee with reference to the value of the house was by the witness R. C. Coffman, who was a party to the suit. He testified that he was a carpenter, blacksmith, and farmer and had been for 30 or more...