Paul v. Johnson, 13259

• Decision Date: 29 May 1958
• Docket Number: No. 13259,13259
• Citation: 314 S.W.2d 338
• Parties: E. S. PAUL et al., Appellants, v. Leonard L. JOHNSON, Appellee.
• Court: Texas Court of Appeals

Page 338

314 S.W.2d 338

E. S. PAUL et al., Appellants, v. Leonard L. JOHNSON, Appellee.

No. 13259.

Court of Civil Appeals of Texas, Houston.

May 29, 1958.

Rehearing Denied June 19, 1958.

George Red, Pat N. Fahey, Houston, for appellants.

Banister & Youngblood, T. W. Youngblood, Jr., Houston, for appellee.

WOODRUFF, Justice.

This is an appeal from a judgment of the County Court at Law of Harris County wherein E. S. Paul and E. R. Paul, as plaintiffs and cross-defendants, were denied a recovery against the defendant and cross-plaintiff, Leonard L. Johnson, for damages to their 1955 Ford sedan, and the cross-plaintiff, Leonard L. Johnson, was awarded judgment on his cross-action for $584.11 for damages to his 1953 Lincoln 2-door sedan when their automobiles collided at the intersection of Maple and Randall Streets in Pasadena, Texas, shortly after noon on April 14, 1957. The trial was before the court without a jury. The parties will be referred to as they were in the trial court.

Plaintiffs' Ford automobile, immediately before the collision, was being driven by E. R. Paul in an easterly direction on Maple Street and toward its intersection with Randall Street, which runs north and south, and the defendant and cross-plaintiff Johnson was driving his automobile north on Randall Street just south of its intersection with Maple. There were no traffic control signals facing either driver. Maple Street is 33 feet wide and Randall's width is 36 feet. On the southwest corner of the intersection and about 8 feet from Randall Street there was located a house with a garage which faced Randall Street. Shrubbery about 3 to 4 feet high was located near the garage, and the testimony showed that Maple Street was lower than the lot.

The collision occurred in the northwest quadrant of the intersection. The cross-plaintiff's vehicle came to rest at the point of impact while the plaintiffs' and cross-defendants' car proceeded north, going over the curbing, turned around and stopped, facing southeast.

Pursuant to a request, the trial court filed Findings of Fact and Conclusions of Law, in which it was found that just before the collision the plaintiff and cross-defendant, E. R. Paul, as he proceeded east on Maple Street, was traveling at a speed of 30 miles per hour, and the defendant and cross-plaintiff Johnson, as he drove north on Randall Street, was driving at a speed of 15 miles per hour. The court also found that as the automobiles entered the intersection the defendant and cross-plaintiff Johnson was on the right of plaintiff and cross-defendant Paul; that the defendant and cross-plaintiff Johnson entered the intersection first, or approximately at the same time as the plaintiff and cross-defendant Paul entered it; that E. R. Paul made no effort to stop or decrease his speed; that the defendant and cross-plaintiff's automobile was damaged as the result of the collision in the amount of $584.11. In the Conclusions of Law the court found that the cross-defendant E. R. Paul was negligent in failing to yield the right of way to cross-plaintiff's vehicle, under Article 6701d, Sec. 71(b), Vernon's Ann.Tex.St.; that the cross-defendant Paul was negligent in failing to slow his vehicle immediately before the collision by a timely application of his brakes; in failing to keep a proper lookout, and in failing to swerve his vehicle to the right in an attempt to miss the defendant and cross-plaintiff's car. There was no finding of contributory negligence on the part of the defendant and cross-plaintiff, Leonard Johnson.

Of the seven Points of Error urged by appellants, Points 1, 2, 4 and 5 complain of the action of the trial court in admitting in evidence, over the plaintiffs' and cross-defendants' objection, cross-plaintiff's Exhibit No. 1 because the repair items reflected thereon were not the proper measure of damages; that the repair order was not properly proven; and in permitting the witness Hall to refer to the exhibit in his testimony, because it was not written by the witness; and in finding that cross-plaintiff's automobile was damaged in the amount of $584.11, because such finding was not supported by the evidence.

The witness Charles A. Hall, employed by Greater Houston Motors, in whose shop cross-plintiff's Lincoln was repaired, testified that he was its body-shop foreman and that he had been a body-shop estimator for 12 years with various concerns, including Higginbotham Buick Company and All American, in addition to Greater Houston Motors. All of his experience, so he said, had been in Houston. He recalled making an estimate for the cross-plaintiff, Leonard L. Johnson, of the cost of the repairs to the Lincoln sedan after the collision, and he brought to the stand the repair order which purported to show the repairs that were made on the cross-plaintiff's Lincoln automobile by Greater Houston Motors. He also testified that the record was the type normally kept in the course of his company's business and although it was not in his handwriting it pertained to the parts and work done on cross-plaintiff's 1953 Lincoln on April 16, 1957, and 'that this particular piece of paper' showed the repairs which were made to appellee's vehicle. Mr. Hall then said he recalled Mr. Johnson's car; that it was a 1953 2-door hard-top Lincoln and that the front, front fender, grill and radiator were damaged. He said the repairs were actually made in their shop, and, after stating that the car was put in the same condition as it was in before the accident, testified that the record identified as 'Cross-Plaintiff's Exhibit No. 1' showed that the cost of such repairs was $584.99 and that in his opinion they were reasonable and necessary as the result of the collision.

On cross-examination the cross-defendants developed that the witness, in preparing the order, got the price on the parts from the parts department, and without referring to the record could not relate every item of repair made to the cross-plaintiff's automobile. Cross-defendants then moved to strike the exhibit, but were overruled. However, Mr. Hall also stated on further cross-examination that he remembered Mr. Johnson's car and while he might not have a specific recollection of every item of damage done, he could 'call off most of them' and, in a general way, he could remember the price of each part. It is clear from his testimony that by referring to the exhibit the witness's recollection was sufficiently refreshed to enable him to testify from his personal knowledge to the repairs made on the automobile.

We are of the opinion that the trial court did not err in admitting cross-plaintiff's Exhibit No. 1 in evidence to show the repairs that were made upon cross-plaintiff's automobile to restore it to its condition immediately before the collision and the prices charged therefor. While it may be said that the general rule by which damages to personal property are to be established is the difference between its market value immediately before and immediately after the injury, it is not the exclusive rule. Where personal property which has been injured may be restored to its original condition, one measure of damages is the reasonable cost of replacement and repairs at the place or in the vicinity where the damages were occasioned, together with the value of its use during the time required to restore it. Schmoker v. French, Tex.Civ.App., 7 S.W.2d 177, no writ history; White v. Beaumont Implement Company, Tex.Civ.App., 21 S.W.2d 559; 13 Tex.Jur., pages 158, 159; Hodges v. Alford, Tex.Civ.App., 194 S.W.2d 293. In fact, the law appears to be settled that upon the introduction of evidence showing the reasonable cost of such replacements and repairs to restore the damaged property to its condition immediately before the damage was done, the owner makes out a prima facie case for recovery. The burden then shifts to the party who damaged it to show that the repairs as made result in an enhanced value. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127; Dallas Railway & Terminal Co. v. Hendrix, Tex.Civ.App., 261 S.W.2d 610. Appellants' Point 1 is overruled.

Nor do we believe that the trial court erred in admitting cross-plaintiff's Exhibit No. 1 because it was not properly proved up. The testimony showed that the exhibit was the repair order coming from the files of Greater Houston Motors, which was kept in the normal course of that business, and, after being so identified, in our opinion, was admissible in evidence to show what repairs were made on the car and the prices which were charged therefor, under Article 3737e, V.A.T.S. See also McCormick and Ray, Texas Law of Evidence, Sec. 1251, p. 107. Appellants' Point 2 is, therefore, overruled.

Moreover, we find no error in the ruling which permitted the witness to refresh his recollection of the nature of the repairs made on the automobile from cross-plaintiff's Exhibit No. 1, although it was not wholly written in his own handwriting. This is 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 to show the exhibit to the witness for the purpose of having him testify that the prices charged for the repairs listed thereon were reasonable and the repairs necessary to restore the Lincoln sedan to its condition before the collision, it being evident, if not conceded, that the witness Hall was amply qualified to testify as an expert regarding these matters. Appellants' Points 4 and 5 are, therefore, overruled.

The cross-defendants, by Point 3, contend that there was no evidence that the cost of the repairs to the cross-plaintiff's car was the reasonable cost in Pasadena, Texas, where the collision occurred. As heretofore discussed, it was proven that the repairs to cross-plaintiff...