Hodges v. Alford

• Citation: 194 S.W.2d 293
• Decision Date: 19 April 1946
• Docket Number: No. 2537.,2537.
• Parties: HODGES v. ALFORD.
• Court: Court of Appeals of Texas

194 S.W.2d 293

HODGES v. ALFORD.

No. 2537.

Court of Civil Appeals of Texas. Eastland.

April 19, 1946.

Appeal from Brown County Court; A. E. Wilson, Judge.

Action by E. C. Alford against Bill Hodges, originally commenced in justice court, for damages to plaintiff's automobile. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for a new trial.

J. Edward Johnson, of Brownwood, for appellant.

Mark Callaway, of Brownwood, for appellee.

LONG, Justice.

This suit was filed by the appellee against the appellant in the Justice Court of Brown County for damages to appellee's car. In that court judgment was rendered for appellee in the sum of $126.20. Appellant appealed to the County Court of Brown County, and upon a jury trial, appellee recovered judgment against appellant for $86. Appellant has duly appealed to this court.

A 1937 Ford pick-up, while being driven by appellee, its owner, along a state designated highway near Brownwood, Texas, collided with a horse belonging to appellant, as a result of which collision the pickup was damaged and such damages form the basis for this law suit. Appellant complains of the way and manner in which the court submitted to the jury the measure of damages upon which this judgment is based. Appellant contends that the proper measure of damages is the difference between the market value of the pick-up immediately before and immediately after the collision. The court attempted to submit to the jury the reasonable cost of repairs necessary to restore the property to its condition prior to the collision and the loss of its use while it was being repaired. The following are the three issues and the jury's answers thereto upon this phase of the case:

"Special Issue No. 7: What would be the reasonable cost of repairing the damage to the plaintiff's automobile caused by the collision with defendant's horse? Answer: $86.00.

"Special Issue No. 8: What, if any, additional damage to the cost of repairing said truck, has the plaintiff's truck suffered by reason of the said collision with defendant's horse? Answer: Not any.

"Special Issue No. 9: What amount of loss and damage has the plaintiff suffered by the loss of the use of his said pick-up during the time the same was being repaired? Answer: None."

Appellant objected to said issues upon the ground that they sought to elicit answers from the jury based upon an improper measure of damages and averred that the proper measure of damages would be the difference between the reasonable market value of the automobile immediately before the collision and the reasonable cash market value immediately after the collision. Much has been written upon the proper measure of damages in a case of this character. The most approved measure is the one contended for by the appellant, but many authorities recognize that where personal property is susceptible of restoration to its condition immediately before the injury, that the plaintiff may recover the reasonable cost of repairs and also the value of the loss of the use of the property while it is being repaired. If after it has been repaired its value is not as great as it was before the injury, he may in addition recover the difference between its value before the injury and its value after the repairs have been made. If the value of the property is more and beyond what it was before the injury, such increase should be deducted from the recovery. White v. Beaumont Implement Co., Tex.Civ.App., 21 S.W.2d 559; Northern Texas Traction Co. v. Singer, Tex.Civ. App., 34 S.W.2d 920; Union City Transfer Co. v. Texas & N. O. R. Co., Tex. Civ.App., 55 S.W.2d 637; El Paso Electric Co. v. Collins, Tex.Civ.App., 10 S.W.2d 397; Milby Auto Co. v. Kendrick, Tex.Civ. App., 8 S.W.2d 743; Yellow Cab & Transfer Corporation v. Warren Co., Inc., Tex. Civ.App., 148 S.W.2d 209.

While we do not approve the issues submitting the measure of damages, we are of the opinion that the exceptions lodged by appellant were not sufficient to call the court's attention to the vice in the same. The appellant took the position in the trial court that there was but one proper measure of damages, namely, the difference, if any, between the cash market value immediately before and immediately after the collision. This contention cannot be sustained in view of the fact that the court was attempting to submit to the jury a proper measure of damages and that the exceptions as lodged do not point out specifically wherein such submission was erroneous. We hold that no error is shown. As authority we cite: Wise v. City of Abilene, Tex.Civ.App., 151 S.W.2d 400, 405; International-Great Northern R. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, 523; Chase Bag Co. v. Longoria, Tex.Civ.App., 45 S.W.2d 242; Abilene & Southern R. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915.

However, as this case must be reversed upon other grounds, we believe upon another trial the cases cited upon the question of measure of damages will assist the court in properly submitting the issues upon that question. We believe that the best and safest measure of damages and the one that will lead to less confusion and be more accurate is the one contended for by appellant, that is, the difference in the cash market value of the property immediately before and immediately after the collision. See Campbell v. Johnson, Tex.Civ.App., 284 S.W. 261.

The jury found in answer to special issues that appellant Hodges did not permit the horse that was struck to roam at large unattended on the right of way where the collision occurred; that the horse was not unattended or a loose horse at the time he was struck; that the horse was on a state designated highway at the time he was struck. The court also submitted the following issues:

"Special Issue No. 4: Do you find from a preponderance of the evidence that such action...