Gulf Production Co. v. Gibson, (No. 9688.)

• Decision Date: 12 November 1921
• Docket Number: (No. 9688.)
• Citation: 234 S.W. 906
• Parties: GULF PRODUCTION CO. v. GIBSON.
• Court: Texas Court of Appeals

234 S.W. 906

GULF PRODUCTION CO. v. GIBSON.

(No. 9688.)

Court of Civil Appeals of Texas. Fort Worth.

November 12, 1921.

Appeal from Eastland County Court; J. H. Jones, Judge.

Action by H. L. Gibson against the Gulf Production Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. E. L. Batts and Frederick E. Greer, both of Wichita Falls, for appellant.

Sayles & Sayles, of Abilene, for appellee.

BUCK, J.

H. L. Gibson sued the Gulf Production Company for damages, alleged to have occurred as a result of defendant's agent having torn down the fences on plaintiff's farm and driven a large tractor and several loaded trucks over plaintiff's cultivated lands. Plaintiff alleged the damages consisted: (1) Of injury to his land, packing it down and cutting it up, and thereby causing said farm to become badly washed by subsequent rains; (2) the value of the wire and fence posts and labor necessarily used in the repair of the fence; (3) the rendering of 20 acres unfit for cultivation during the crop year of 1920, and the loss of the usual crops thereon.

Defendant, after a general demurrer, certain special exceptions, and a general denial, specially pleaded contributory negligence on the part of the plaintiff in not expending a small amount of labor and money to avoid or lessen the loss.

The court, after setting out the grounds for recovery alleged in plaintiff's petition, and calling attention to defendant's plea of contributory negligence, and instructing the jury with reference thereto, informed the jury that they would have the petition and answer with them during their deliberations, and charged them that the burden was upon plaintiff to prove by a preponderance of the evidence the material allegations on which he relied for recovery, and, should they find that these material allegations were true, they would further find whether he contributed to his damages by his own negligence, if any, and, if so, to what extent, and, keeping all the foregoing in mind, the jury would determine whether plaintiff should recover, and, if so, to what extent. The jury returned a verdict for $150, and the defendant has appealed.

The first assignment is directed to the refusal of the court to give the following special instruction tendered by the defendant:

"You are instructed that the wrongdoer is responsible for only such consequences of his act as are the natural and probable results thereof."

It is not error to refuse a charge containing an abstract principle of law without informing the jury of its application to the issues. Hayward Lumber Co. v. Cox, 104 S. W. 403, writ denied. Instructions should be framed with reference to the pleading and the testimony, and not expressed in abstract and general terms. 46 Cent. Dig. p. 1590, § 582; Belton Oil Co. v. Duncan, 60 Tex. Civ. App. 257, 127 S. W. 884; Zarate v. Villareal, 155 S. W. 328, writ of error denied. Moreover, the evidence sustains the recovery found, we think, on the ground that the injury done was the natural and probable consequences of defendant's acts in going upon the land. The charge tendered admits that the going upon the land was wrongful.

We do not think the charge tendered by the defendant, and to the refusal of the giving of which the second assignments is directed, includes all of the grounds of recovery which plaintiff's petition contained and the evidence supports. If the going upon the land was wrongful, and the damage was done to the land so that the plaintiff could not cultivate it the next year, or could not raise the usual crops thereon, we think that the defendant would be liable for the loss of the use of the land for that year. The charge tendered limited plaintiff's recovery to the amount of money necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with interest thereon to the time of the trial. Plaintiff testified that on four acres of the land traveled over by defendant's agents he did not raise any crop, and that on some two acres of the land he raised only a small part of the crop raised on other land of like character and adjacent thereto. We think he was entitled to recover this loss. Nor do we think that the submission of this charge required the trial court to give a correct charge upon the measure of damages involved in this suit. No assignment is directed to the failure of the court to instruct the jury as to what measure of damages would apply. In Olds Motor Works v. Churchill, 175 S. W. 785, we held that, in order for one who has tendered an incorrect charge to be in a position to urge error in the appellate court, he must have an assignment to the failure of the court to give the requested charge, as well as an assignment to the failure of the court to give a correct charge, and we believe the rule laid down in that case is the proper one.

The evidence of defendant's witnesses showed that they were hauling derrick material between Eastland and Breckenridge; that on this occasion they had a tractor pullling two trucks or trailers; that these trucks were capable of carrying 12,000 pounds, but on this occasion had only about 10,000 pounds; that when they reached a point on the road in front of plaintiff's land they discovered a bad place in the road, and the...