Quanah, A. & P. Ry. Co. v. Novit

• Decision Date: 14 November 1917
• Docket Number: (No. 1239.)
• Citation: 199 S.W. 496
• Parties: QUANAH, A. & P. RY. CO. v. NOVIT.
• Court: Texas Court of Appeals

199 S.W. 496

QUANAH, A. & P. RY. CO. v. NOVIT.

(No. 1239.)

Court of Civil Appeals of Texas. Amarillo.

November 14, 1917.

Rehearing Denied January 9, 1918.

Appeal from Cottle County Court; W. O. Jones, Judge.

Suit by Sam Novit against the Quanah, Acme & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. A. Clarke, D. E. Decker, and Jno. P. Marrs, all of Quanah, for appellant. James M. Whatley, of Paducah, for appellee.

BOYCE, J.

This suit was brought by appellee to recover of appellant damages to a shipment of a car of apples. The apples were originally shipped from Wallace, Mo., and consigned to plaintiff at Vernon, Tex., but upon arrival at such place were reshipped to Paducah. It was alleged that the apples were in good condition when reshipped from Vernon, but on account of the negligence of the defendant they were worthless upon arrival at Paducah. The plaintiff pleaded that the market value of the apples at Paducah, if properly transported, would have been $1.25 per bushel, but that upon arrival they were worthless and, further, that he "would have realized, after deducting the freight and reasonable expense of handling same at Paducah, Tex., the sum of $346.95, from the car of apples," and prayed for judgment for said sum, for general relief, etc.

The case was submitted on special issues, and the jury found that the defendant was negligent in the transportation of the car of apples from Vernon to Paducah; that the market value of the apples in the condition in which they arrived at Paducah was $20. The seventh issue submitted was as follows:

"If in answer to issue 4 you have answered that the apples were in bad condition when they arrived, then what would have been their market value at Paducah, Tex., had they arrived in good condition by retail on the market at Paducah, Tex.?"

To which the jury answered:

"$667.50, at $1.25 per bushel."

The eleventh issue submitted was as follows:

"If you have answered the apples arrived in bad condition, then had the apples arrived in good condition what would the plaintiff have realized on them, after deducting the freight charges and the reasonable expense of handling the same at Paducah, Tex.?"

To which the jury answered:

"$304.95, less expenses unknown."

The court entered judgment upon this verdict for the plaintiff for the sum of $304.95.

There was no pleading or evidence that would authorize the recovery by plaintiff of special damages, and the proper measure of damages in this case would be the difference in the market value of the apples in the condition in which they did arrive and their market value at Paducah at the time and in the condition they would have arrived but for the negligence in transportation. If there was no market value, then the reasonable value of the apples would be the basis of estimating the damages. The defendant's exception to plaintiff's pleading, as above stated, of what he would have realized from the sale of said apples, should therefore have been sustained and such issue not have been submitted to the jury. Even if this was the proper measure of damages no judgment could have been entered on the answer of the jury to this issue because the expense which should have been deducted from the $304.95 was unknown.

But appellee takes the position in this court that the pleading and verdict are sufficient to support the judgment on application of the proper measure of damages as we have stated it, since a deduction of the balance of the freight charges, added to the $20 found by the jury to be the market value of the apples at Paducah in their damaged condition, from their market value in good condition, as found in the answer to the seventh issue, as above stated, leaves an amount largely in excess of the amount for which the judgment was entered. This would be correct if the issue of the market value of the apples at Paducah had been properly submitted, so that we are brought to the consideration of appellant's assignment to the effect that the value of the apples as they might be sold at retail does not furnish the correct basis for determining the value of the car of apples. An employé of the plaintiff and one of his witnesses testified that $1.25 per bushel was the price at which they were peddling out such apples in good condition at Paducah.

It is not reasonable that the value of this quantity of apples could be fairly said to be the price at which they might be sold at retail in small quantities by the bushel, dozen, etc., for certainly there would be some expense, loss, or risk of loss, etc., in peddling out and disposing of a carload of apples in small quantities, and where, as in this instance, the plaintiff did not receive the goods in their damaged or worthless condition at all, so that the expense of retailing them was not incurred, we think the market value of the apples, if sold at retail, would not be the proper measure of recovery. Tucker v. Hamlin, 60 Tex. 171; T. & P. Ry. Co. v. Payne, 15 Tex. Civ. App. 58, 38 S. W. 366; Schoolher v. Hutchins, 66 Tex. 324, 1 S. W. 269; Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S. W. 787; Virginia Fire Insurance Co. v. Cannon, 18 Tex. Civ. App. 588, 45 S. W. 948; Heidenheimer v. Schlett, 63 Tex. 394; Cincinnati Ry. Co. v. Hansford, 125 Ky. 37, 100 S. W. 251.

"The measure of damages in a case of this kind is the value of the goods in the exact condition they were in at the time of the conversion,...