McMahan v. Musgrave
| Decision Date | 17 March 1950 |
| Docket Number | No. 2787,2787 |
| Parties | McMAHAN v. MUSGRAVE. |
| Court | Texas Court of Appeals |
Cox & Bradbury, Abilene, for appellant.
McMahon, Springer & Smart, Abilene, for appellee.
J. L. Musgrave recovered a judgment against T. E. McMahan for $310 and McMahan has appealed.
Musgrave alleged that he suffered damages as a result of a collision of his automobile with that of McMahan's, which collision, he alleged and the jury found, was caused by McMahan's negligence. Relative to the measure of damages, plaintiff alleged that on January 18, 1949, he owned an automobile worth $1,200; that on said night his automobile was damaged in a collision with defendant's automobile. He then alleged the circumstances surrounding the collision and concluded said paragraph with the following: 'Plaintiff's automobile was broken and damaged in the amount of Three Hundred Ten ($310.00) Dollars, and that the market value of said automobile was then and there reduced by at least that amount.' The foregoing are all of the allegations relative to damages. Special Issue No. 18 was as follows: 'What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence would compensate plaintiff for damages, if any, to his Plymouth automobile." The jury's answer to said issues was, '$310.00." Judgment was rendered for Musgrave against McMahan for $310.
Plaintiff was permitted to testify, in substance, that he had his automobile repaired after the collision; that the cost of repairing the automobile was $310; that said charges were reasonable and that his automobile was not in better condition after it was repaired than before the accident. Musgrave also was permitted to introduce the repair bill.
Appellant made the following objections to said issue:
'(a) The defendant objects and excepts to Special Issue No. 18, and the submission of said special issue, for the reason that same is too vague, indefinite and uncertain, in that it does not confine the jury to a consideration of matters and things within the true measure of damages applicable to the pleadings and evidence in this cause, but permits the jury to resort to surmise and speculations as to the meaning of the court's charge, and the matters and things to be taken into consideration in arriving at the answer to be made thereto.
'(b) Because plaintiff's pleadings as to damages was based on a reduction in the market value of his automobile in the sum of $310.00, and the court's charge should have been based on said pleadings by submitting to the jury, first, what they found the reasonable cash market value of plaintiff's automobile to have been immediately before the collision, and, second, the reasonable cash market value of plaintiff's automobile immediately after the collision, that Special Issue No. 18 was erroneous in not being in such form.
'(c) That said issue would not be proper even though plaintiff's pleadings had based his damages on the reasonable and necessary repairs, which the pleadings did not do, but had they so provided this issue would not be proper in that it does not restrict the jury to a finding of reasonable and necessary repairs.'
The objections under (a) were properly overruled. They did not 'point out distinctly the matter to which he objects and the grounds of his objection', as required by Texas Rules of Civil Procedure, rule 274. The objections under (b) merely state the contention that the court should submit issues as to the value of the automobile before and after the accident, because that is the measure of damages alleged. Objections under (c) state appellant's contention that even if appellee had alleged the reasonable cost of repairs to his automobile necessitated by appellant's negligence that the issue submitted would not be proper because it does not restrict the jury to a finding of reasonable and necessary repairs.
We do not construe the allegations with references to damages to necessarily restrict appellee to proof of the difference between the value of the automobile before and after the accident. It is not necessary that plaintiff allege the measure of damages. The measure of damages is a question to be determined by the court. The amount of damages is to be determined by a jury.
The court could not have complied with appellant's suggestion said objections that issues as to the value of the car before and after the accident be submitted because there was no evidence thereof. There was some evidence as to the reasonable cost of repairs necessitated by the collision. We think the court should have submtted such an issue. Appellant's objections do not suggest the submission of such an issue but urge the submission of a different issue, to wit: the value of the car before and after the accident, which suggested issue would have had no support in the evidence. We do not approve the issue submitted. However, its submission has been held to not be reversible error in an action for damages for personal injuries. Willis v. Smith, Tex.Civ.App., 120 S.W.2d 899, 903, Writ.Dis. See also Missouri-Kansas-Texas Ry. Co. of Texas v. Wells et al, Tex.Civ.App., 275 S.W. 218, 221, Writ.Ref. The jury found that appellee's car had been damaged to the extent of $310. From this record there is no reason to believe the verdict would have been different had the court asked it to find the reasonable cost of repairs necessitated by the collision. See 13 Tex.Jur. 159 and Hodges v. Alford, Tex.Civ.App., 194 S.W.2d 293, 295; Pasadena State Bank v. Isaac, Tex.Sup., 228 S.W.2d 127.
Appellant also assigns error to the overruling of objections to appellee's testimony relative to the repair of his automobile and the cost of repairs. Mr. Musgrave testified that his automobile was repaired after the collision, where it was repaired, the cost; that the cost was reasonable and that he had the repair bill. Questions eliciting such testimony were objected to on the ground that appellee had pleaded that his motor vehicle was damaged by being reduced in value by the collision and had not alleged that his damages were measured by the reasonable and necessary cost of repairs. Such objections...
To continue reading
Request your trial
-
Wright v. Gernandt
...820 (Tex.Civ.App. Fort Worth 1975) rev'd and remanded on other grounds, 524 S.W.2d 680 (Tex.Sup.1975); McMahan v. Musgrave, 229 S.W.2d 894 (Tex.Civ.App. Eastland 1950, writ dism'd). Defendant's point of error 12 is Defendant's multifarious point of error number 8 is overruled. Rule 418, T.R......
-
Mathis v. State
...Gulf C. & S. F. Ry. Co. v. Bouchillon, Tex.Civ.App., 186 S.W.2d 1006; Frozen Foods Exp. v. Odom, Tex.Civ.App., 229 S.W.2d 92; McMahan v. Musgrave, 229 S.W.2d 894; Anderson v. Broome, Tex.Civ.App., 223 S.W.2d Point 15 assigns error to the trial court's action in overruling objections to Issu......
-
Thomas v. Callaway
...error. Prejudicial error must be shown. Anderson v. Broome, Tex.Civ.App., 233 S.W.2d 901; Rule 274, T.R.C.P.; McMahan v. Musgrave, Tex.Civ.App., 229 S.W.2d 894; Southwest Stone Co. v. Symons, Tex.Civ.App., 237 S.W.2d 380; Niles v. Parsons, Tex.Civ.App., 239 S.W.2d By his points twenty-two, ......
-
Paul v. Johnson, 13259
...largely within the discretion of the trial court. McCormick and Ray, Texas Law of Evidence, Sections 548, 549 and 550; McMahan v. Musgrave, Tex.Civ.App., 229 S.W.2d 894, error dism.; Freeland v. Peltier, Tex.Civ.App., 44 S.W.2d 404. Neither was there any error in permitting cross-plaintiff ......