Octane Oil Refining Co. v. Blankenship-Antilley I. Co., 1801.

• Decision Date: 20 May 1938
• Docket Number: No. 1801.,1801.
• Citation: 117 S.W.2d 885
• Parties: OCTANE OIL REFINING CO. v. BLANKENSHIP-ANTILLEY IMPLEMENT CO.
• Court: Texas Court of Appeals

117 S.W.2d 885

OCTANE OIL REFINING CO. v. BLANKENSHIP-ANTILLEY IMPLEMENT CO.

No. 1801.

Court of Civil Appeals of Texas. Eastland.

May 20, 1938.

Appeal from Taylor County Court; John Camp, Judge.

Action by Blankenship-Antilley Implement Company against Octane Oil Refining Company and others for labor done and materials furnished in repairing a truck. From an adverse judgment, named defendant appeals.

Affirmed in part and reversed and remanded in part.

Scarborough & Ely and Walter Ely, all of Abilene, for appellant.

Wiley L. Caffey, of Abilene, for appellee.

GRISSOM, Justice.

Blankenship-Antilley Implement Company, a corporation, sued Octane Oil Refining Company, a corporation, Baird Refining Company, a corporation, and R. O. Anderson and Nat Anderson, alleged to be operating as New Deal Marketing Company, for labor done and materials and parts furnished by plaintiff in the repair of a truck. Plaintiff alleged that the labor was performed and the parts furnished "at the instance and request of defendants" and that "said repairs were contracted for by defendants"; that at the time the work was done Octane Oil Refining Company and Baird Refining Company were the owners of said truck and had plaintiff make such repairs through their agents and employees, and thereby said corporations became liable and bound to pay plaintiff the sum of $221.58. In the alternative plaintiff alleged that if the truck did not belong to the Octane Oil Refining Company and Baird Refining Company or to one of them, at the time it was repaired, that it belonged to R. O. and Nat Anderson, but that the truck was being used in the furtherance and operation of the business of Octane Oil Refining Company and Baird Refining Company, and that said truck later became the property of said companies, and that said companies knew when they acquired ownership of the truck that plaintiff had a claim and lien against it.

Upon a jury trial the court instructed a verdict for Baird Refining Company and against Octane Oil Refining Company. A default judgment was taken against the Andersons. Judgment was rendered for the amount sued for against Octane Oil Refining Company and the Andersons, but the alleged lien was not foreclosed. Octane Oil Refining Company has appealed.

Appellant presents two propositions. The first is that the court erred in instructing the jury to return a verdict in favor of appellee against appellant for the amount sued for, because the only evidence of the reasonableness of the charges made and the necessity for the labor done and materials furnished came from a stockholder and officer of the appellee, it being contended that such witness was an interested witness and that his uncontradicted testimony only raised a jury question.

An itemized account of labor and material was introduced in evidence by appellee. The items stated therein aggregated the amount sued for. The account was not verified. Appellant states, and it is not disputed by appellee, that the only evidence of the correctness of the charges in the itemized statement appears in the testimony of Mr. Blankenship, an officer and stockholder in the appellee corporation, as follows: "Q. Were these charges that you made for this work and material —were they reasonable and necessary? A. Yes sir."

In Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 334, the rule is announced: "* * * that the uncontradicted, uncorroborated testimony of a party to a suit will not authorize or support an instructed verdict."

The court further said: "Similarly, it is settled by the authorities that the jury in determining facts is not bound by the opinions of witnesses. In Gulf C. & S. F. Ry. Co. v. Davis, (Tex.Civ.App.) 225 S.W. 773, 775, the court said: `It is also settled law that where a fact is sought to be established by opinion evidence, not amounting to the certainty of positive proof, although not disputed by other evidence, the jury are free to give such weight to the same as in their judgment it may be entitled to.'"

In Guinn v. Coates, 67 S.W.2d 621, 623, this court, speaking through its former Chief Justice Hickman, said: "There was evidence as to the value of the material used and as to the length of time required to perform the services. It is peculiarly within the province of the jury to weigh opinion evidence, and the judgment of experts, even when unanimous and without positive contradiction, will not necessarily be conclusive. To hold otherwise would be to shift the most important function of the jury to expert witnesses."

In Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916, 921, opinion by Justice Sharp, the court said: "It matters not how positive and uncontradicted the testimony of an interested party may be; the question of his credibility must be submitted to the jury."

In McDaniel Bros. v. Wilson, Tex.Civ. App., 45 S.W.2d 293, one of the appellees testified without contradiction that all things required by their architects were necessary. The court held that (page 298) "because of the personal interest of this witness the issue of necessity as to the several items of repairs should have gone to the jury."

In Goodrich v. Pandem Oil Corp., Tex.Com.App., 48 S.W.2d 606, 609, is found this language: "It is true that one of the officers of defendant in error testified positively that in purchasing said oil and gas lease he relied upon plaintiff in error's representation as to the amount of acreage owned by him in said survey. But he was an interested witness. It was therefore within the province of the jury to determine his credibility and the weight to be given to his testimony. Cheatham v. Riddle, 12 Tex. 112; Coats v. Elliott, 23 Tex. 606; Houston, E. & W. T. Ry. Co. v. Runnels, 92 Tex. [305], 307, 47 S.W. 971, 972." Also see, Chicago Fire & Marine Ins. Co. v. Harkness, Tex.Civ. App., 58 S.W.2d 171; Strickler v. Kassner, Tex.Civ.App., 64 S.W.2d 1025; Transcontinental Ins. Co. v. Frazier, Tex.Civ. App., 60 S.W.2d 268; Roberts v. County of Robertson, Tex.Civ.App., 48 S.W.2d 737, 739.

It is apparent that the testimony in question was opinion evidence, and that the witness, being a stockholder and officer of the appellee corporation, was an interested witness. Therefore, his uncontradicted and uncorroborated testimony as to the reasonableness of the charges and necessity for the repairs made did not establish such facts conclusively, but merely raised an issue for the determination of the jury. We...