Midkiff v. Benson

• Decision Date: 10 November 1921
• Docket Number: (No. 1253.)
• Citation: 235 S.W. 292
• Parties: MIDKIFF v. BENSON.
• Court: Texas Court of Appeals

235 S.W. 292

MIDKIFF v. BENSON.

(No. 1253.)

Court of Civil Appeals of Texas. El Paso.

November 10, 1921.

Rehearing Denied December 1, 1921.

Appeal from District Court, Presidio County; Joseph Jones, Judge.

Action by J. H. Benson against J. C. Midkiff. From a judgment for plaintiff, defendant appeals. Affirmed.

J. Q. Henry, of Del Rio, and Anderson & Upton, of San Angelo, for appellant.

C. R. Sutton and Mead & Metcalfe, all of Marfa, for appellee.

WALTHALL, J.

This is a second appeal of this case. The first is reported in 225 S. W. 186, and to which we refer for a discussion of some of the issues presented here.

This suit was brought by appellee, J. H. Benson, against appellants, J. C. Midkiff and wife, for damages resulting from an alleged breach of a lease contract leasing the basement of a house in Marfa, Tex., for a period of three years beginning with July 26, 1918, to be used by appellee as a pool hall.

The building consists of two stories and the basement, the first and second stories being leased to other parties. The lease contract, while introduced in evidence, is not found in the record, but in appellant's statement of the nature and result of the suit, and elsewhere in the record, it is said that the written lease provided that appellant would "keep the building in repair during the term of the lease." Appellee alleged that he sustained damages as the result of water in large quantities leaking through the ceiling and floor above said basement and on said pool tables, six in number, and that sleet, ice, snow, and water came into said basement through an open stairway leading from the street into said basement, and premises; that said conditions continued from time to time; that by reason of said conditions the pool tables were greatly damaged, stating in detail the damage to the several tables, and the amount of damage to each; that the water coming in, as alleged, stood on the floor of the said basement in such quantities and so deep as to cause the floor to warp, buckle, and become uneven so that customers could not play at the games usually played at such places of business.

The several items of damage to the pool tables appellee alleged to be $800, and the damage growing out of loss in patronage he alleged to be $1,800. Appellee alleged that he sustained other damages by reason of the matters complained of, but same were not submitted.

Appellant answered by general and special exceptions, general denial, special plea that the open stairway complained of was constructed with the knowledge and consent of appellee prior to the lease, and that any damage resulting from the open stairway appellee assumed; that when appellee leased the building he was in possession of it; that at the time of the lease the building was in good condition and was accepted by appellee; that if any injury occurred it was occasioned by means beyond the control of appellant, was unavoidable, and for which appellant was not liable; that if plaintiff was damaged it was because he failed, neglected, and refused to use such means as persons of ordinary prudence would use to avoid injury; and that any injury appellee suffered was the result of his own negligence.

The case was tried to a jury and submitted on special issues, resulting in a verdict in favor of appellee, on the item of loss in patronage in the sum of $600, and damages to the pool tables in the sum of $250. The court instructed a verdict in favor of Mrs. Midkiff, and entered judgment in favor of appellee and against appellant, J. C. Midkiff, for the sum of $850.

Appellant presents six assignments of error. The first assignment goes to the admission in evidence, over objection, of certain testimony of appellee. Benson testified that he kept books showing the daily receipts of the business, and after having testified that Nay Bowles began working for him in February, 1918, and kept the books, and that he (Benson) checked them up by the month from that time on, but that Nay Bowles made the daily entries, the objection was to the statement of Benson as to the daily entries of receipts from the pool tables in the books kept by Bowles, and from which daily entries so kept Benson made up the several monthly aggregates of receipts for the months the books were kept by Bowles, and testified to such daily book entries and the aggregates therefrom for the months of February, March, and April, 1919. From such monthly aggregates as compared with corresponding months of 1917 and 1918, Benson estimated his monthly losses for February, March, and April, 1919.

We think it was error to permit Benson to testify to...