Sivalls Motor Co. v. Chastain
| Decision Date | 30 March 1928 |
| Docket Number | (No. 422.) |
| Parties | SIVALLS MOTOR CO. v. CHASTAIN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
Action by O. F. Chastain against the Sivalls Motor Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Allen D. Dabney, of Eastland (Turner, Seaberry & Springer, of Eastland, on the brief), for appellant.
Scott, Brelsford, McCarty & Brelsford and Chastain & Judkins, all of Eastland, for appellee.
This appeal is from a judgment for $800 in favor of appellee as plaintiff in the trial court against appellant as defendant. Four propositions are urged to show that the judgment is erroneous and should be reversed. The first two propositions complain of the testimony of appellee as a witness in his own behalf as to the market value of a certain automobile as a new car and also its market value after certain alleged defects had become manifest. The witness was permitted to give his opinion on the question of market value, after having testified that he had made an investigation and had ascertained the market value, and that he knew the cash market value of the car in the condition in which it was found to be shortly after he purchased it. The ground of objection to the testimony was that the witness was not shown to be qualified to give his opinion as to the market value. We have reached the conclusion that these propositions should be overruled. The witness having first testified that he had made an investigation, and had ascertained the reasonable market value of the car as a new car, and that he knew the reasonable cash market value of the car in the condition it was in after the defects appeared, the admission of his testimony as to such values is not shown to be erroneous by bills which fail to show what investigation the witness made or how he claims to have ascertained such market value. A witness may, in fact, be not qualified to testify as to market value, even though he says he knows the market value. His information may be wholly hearsay. His only means of knowledge may be such that, as a matter of law, shows he is not qualified to give his opinion. But, when a witness testifies that he knows the market value of property he is prima facie qualified to testify, and it is necessary for one objecting to develop the facts and show by his bill that the knowledge which the witness claims to have is based wholly upon hearsay, or that his sole means of such knowledge is such that, as a matter of law, does not qualify him. If a witness says that he knows the market value of property under investigation, and, in connection with his testimony, states a means of such knowledge which, standing alone, would be insufficient, it is nevertheless necessary for the bill to show that the means of knowledge stated constitutes the only source of such information. Otherwise it will be presumed that the knowledge which the witness claims to have is not derived solely through the means stated. In other words, the facts showing that a witness is not qualified to give his opinion as to market value, when he states that he knows such value, must be affirmatively shown by the bill complaining of his testimony. Pecos & N. T. Ry. Co. v. Porter (Tex. Civ. App.) 156 S. W. 267; Houston Belt & Terminal Ry. Co. v. Vogel (Tex. Civ. App.) 179 S. W. 268; C., R. I. & G. Ry. Co. v. Jones (Tex. Civ. App.) 118 S. W. 759; H. E. & W. T. Ry. Co. v. Charwaine, 30 Tex. Civ. App. 633, 71 S. W. 401; M. K. & T. Ry. Co. v. Cocreham, 10 Tex. Civ. App. 166, 30 S. W. 1118; Foster v. Burgin (Tex. Civ. App.) 244 S. W. 244.
Another point or proposition relied on for reversal of the judgment is stated as follows:
"Where an alleged cause of action is predicated upon an allegation that an automobile was purchased under a warranty `that said car could give full satisfaction and operate according to the Buick standard of first-class performance,' it is error to submit special issues as to whether or not `the car was in first-class condition and free from defects in material and workmanship.'"
Plaintiff's petition was in three counts or alternative pleas. By the first count, rescission was sought of the sale by appellant to appellee of the automobile, based upon allegations that the car was warranted to be "a new automobile in first-class condition, free from all apparent or latent defects in material and workmanship and was in all respects a first-class automobile, equal to the usual Buick standard in material and workmanship and in perfect condition," and that "through fraud, accident, or mistake" such warranty was breached, by reason of which recovery was sought of the purchase price of the car in the sum of $1,770. By the second count or alternative plea, recovery was sought for breach of a warranty in the sale of the car that it "could give full satisfaction and operate according to the Buick standard of first-class performance"; claim being made for the difference in the purchase price of the car and what it was actually worth by reason of the fact that it was not as warranted. Also damages were claimed for deprivation of the use of the car. By the third count or alternative plea, recovery was sought of the difference in the purchase price of the car and its actual value after testing, and also damages by reason of the inability of plaintiff to use the car for business and pleasure purposes within the contemplation of the parties, upon the claim of a breach of an implied warranty, in addition to the express warranty claimed in the second count, to the effect "that the car was a good car, a new car, in first-class mechanical condition, and suited to the purpose for which it was purchased, to wit, the use in the business of an attorney at law and as a pleasure car for his (plaintiff's) family.
Defendant's answer properly joined issue on the allegations of the several counts of plaintiff's pleading, and upon the trial the case was submitted to the jury upon special issues, which, with the jury's findings thereon, were as follows:
The judgment of the trial court was expressly against appellee upon his claim for rescission. Since judgment was based upon the jury's findings upon the special issues quoted above, the plaintiff's claim upon an implied warranty was as effectually eliminated from consideration as the claim for rescission. From this...
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