Pasadena State Bank v. Isaac, 12100.

• Decision Date: 23 June 1948
• Docket Number: No. 12100.,12100.
• Citation: 222 S.W.2d 181
• Parties: PASADENA STATE BANK v. ISAAC.
• Court: Texas Court of Appeals

222 S.W.2d 181

PASADENA STATE BANK v. ISAAC.

No. 12100.

Court of Civil Appeals of Texas. Galveston.

June 23, 1948.

Rehearing Denied July 15, 1949.

Appeal from Harris County Court; W. Sears McGee, Judge.

Action by Pasadena State Bank against J. B. Isaac to recover for damage to an electrical accounting machine while being transported by defendant. From a judgment denying any recovery, plaintiff appeals.

Judgment reversed and in part rendered.

James G. Donovan, Joe D. Jarrard, Jr., both of Pasadena and Morris Pepper, of Houston, for appellant.

T. Jay Foster, of Pasadena, Henson, Coleman, Foster & Walker, of Pasadena, of counsel, for appellee.

CODY, Justice.

From a judgment denying appellant Bank recovery of any damages for an injury to an electrical accounting or bookkeeping machine belonging to appellant, alleged by appellant to have been proximately caused by the negligence of appellee, d/b/a the Pasadena Transfer Company, a hauling and moving business, this appeal is prosecuted.

Appellant alleged that on or about April 20, 1947, appellee, under an agreement with appellant, undertook to transport safely the accounting and bookkeeping machine aforesaid, but by reason of his negligence, specified in appellant's petition, appellee injured said machine, and appellant further alleged: "The aforesaid machine was not susceptible to local repairs and plaintiff was put to the expense of returning the machine to the factory of the aforesaid manufacturer for overhauling and repairs; which expenses were in the sum of $979.39, which sum it was necessary and reasonable for plaintiff to expend to restore the said machine to approximately the same condition it was in before it was damaged as aforesaid, to plaintiff's damage in the sum of $979.39, said sum being the difference in the reasonable cash market value of said machine immediately before and immediately after it was damaged as aforesaid."

The court, trying the case without a jury, rendered the judgment as above indicated. In response to appellant's demand, the court filed his conclusions of fact and law on January 31, 1949, to the effect, among other things:

That appellant bought the machine new about three years before appellee injured it, and paid therefor approximately $1700. Further, that "No testimony or evidence as to market value of said machine immediately before said accident and immediately after said accident was introduced by plaintiff. When plaintiff's witness was questioned by the court as to the market value before and after, he disqualified himself by saying that he did not know anything about market value."

That the machine was susceptible to repairs, and appellant had the same repaired at the expense of $979.39, which was the reasonable and necessary expense to restore the machine to the same condition it was in immediately before it was damaged; that $600 of the total repair bill represented replacements in the machine by new parts; and further, that "Plaintiff offered no evidence and no testimony showing the relative value of the machine after such repairs were made and the value of said machine immediately before the accident."

As his conclusion of law the court found: That appellant (plaintiff) has failed to discharge his burden of proof on the question of damages; that there was no evidence which would show market value immediately before and immediately after the accident. Further, that "The only evidence upon which this court could enter a judgment for plaintiff is the reasonable and necessary cost of repairs. I believe it would be an error for this court to enter a judgment for plaintiff based on this evidence alone for such a judgment would fail to take into account the very evident possibility that the market value of said machine after repairs might exceed the market value of said machine immediately before said accident."

Thereafter, on February 7, 1949, the court filed additional findings of fact to the effect: That the repairs were reasonable and necessary and restored the machine "to the same condition it was in immediately before it was damaged." That the repairs as made did not include any `innovations' or `new features' but only covered repairs "necessary to restore the machine to its former operating condition in all respects."

Appellant predicates its appeal upon two points: (1) that the court should have rendered judgment for appellant as appellant proved, and the court found, that the machine was restored to the same condition which it was in prior to the injury, so that the measure of damages which is applicable and which was proved by appellant was the reasonable cost of necessary repairs to the machine, "and the court erred in holding as a matter of law that the measure of damages in such a situation is the difference between the market value of the machine immediately before the accident and immediately after the accident", (2) that the case should at least...