Souther v. Hunt

• Decision Date: 18 October 1911
• Citation: 141 S.W. 359
• Parties: SOUTHER v. HUNT et ux.
• Court: Texas Court of Appeals

141 S.W. 359

SOUTHER v. HUNT et ux.

Court of Civil Appeals of Texas. Austin.

October 18, 1911.

On Motion for Rehearing, November 29, 1911.

Appeal from Johnson County Court; J. B. Haynes, Judge.

Action by Hugh Hunt and wife against Alta Souther. From a judgment for plaintiffs, defendant appeals. Affirmed.

Phillips & Bledsoe, for appellant. E. A. Rice, for appellees.

Findings of Fact.

JENKINS, J.

Appellees, Hugh Hunt and wife, brought suit against appellant, Souther, to recover $250 actual damages and $500 punitory damages, and alleged as their cause of action that on the 14th day of March, 1909, they were man and wife, living in Cleburne, Tex., and were the owners of certain household and kitchen furniture, to wit, two trunks of the value of $2.75 each, one feather bed of the value of $15, one pillow of the value of $3, one oil stove of the value of $2, one suit case of the value of $1.25, one coat and pair of pantaloons of the value of $5, one suit of men's underwear of the value of $1.25, one small album of the value of 40 cents, family portraits and photographs of the value of $5, one counterpane of the value of $1.75, one set of beads of the value of $12.50, four ladies' waists of the value of $4.25, three dresses of the value of $9, blocks for six quilts of the value of $12, two suits of ladies' underwear of the value of $1, two aprons of the value of $2, one broom of the value of 35 cents, one rope of the value of 25 cents, net for waist, not made, of the value of $1.50, goods for one dress, not made, of the value of $3, and other personal effects contained in said trunks of the cash value of $10. That said goods were all of the personal effects belonging to appellees, except the clothes that they were wearing at said time; that on said day and date the appellant entered the rooms rented by appellee and in which said property was situated, and forcibly took possession of the same, claiming that appellee Hugh Hunt was indebted to him; that, when appellant first came for said goods, he brought with him an express wagon and driver for the purpose of taking them away; that he had been to the rooms where said goods were situated a short time before in the absence of Mrs. Hunt, and that during his absence for the purpose of getting said express wagon appellee Mrs. Hunt, with the assistance of a lady who lived in the adjoining rooms in said house, had moved said goods into said lady's room; that upon appellant's return, as aforesaid, finding said goods moved from appellee's room, he forcibly entered the room to which said goods had been moved, and that, upon the occupant of said room advising appellee Mrs. Hunt to call an officer, he said that he would do so himself, and went away and shortly returned with C. H. McLean, the city marshal of Cleburne; that both he and McLean in his presence accused said Mrs. Hunt and her husband of being dishonest and threatened to bring a county officer and seize said goods, and require Mrs. Hunt to attend court and expose her and her husband, and have her husband arrested. Her husband, Hugh Hunt, had left that evening for Hillsboro, where he obtained employment, and where he was living at the time of this suit. He had formerly been in the employ of appellant as a hack driver, and had quit such employment on the day the above events occurred. Appellant admitted getting the goods, but both he and McLean denied that they used any insulting language towards Mrs. Hunt, or made any threats such as were claimed by her, but, on the contrary, alleged that she consented to appellant's taking said goods.

The court submitted the issues raised to the jury, and the jury by returning a verdict in favor of appellees for $50 actual damages and $250 exemplary damages found, in effect, that the allegations in said petition as to the forcible taking of said goods and the insults and threats alleged were true. The evidence is sufficient to sustain these findings.

Opinion.

Appellant complains of the action of the court in sustaining objections to the answer of witness McLean, as follows: "I am not under any obligations to plaintiff or the defendant in this case in any way. I did not in any manner undertake to compel Mrs. Hunt to give Souther the goods in question." The trial court did not err in sustaining these objections. They were but expressions of opinion concerning which, the facts being stated, the jury were in as good position to know as was the witness. This is unlike a case where the intent of a witness is a material fact, and to which intent he may testify as a fact. It presents no exception to the general rule that the witness state the facts, and not his opinion. 5 Ency. Evid. pp. 651-699; Railway Co. v. Long, 87 Tex. 148, 27 S. W. 113, 24 L. R. A. 637, 47 Am. St. Rep. 87; Railway Co. v. Smith, 52 Tex. 186.

Even had the answer of the witness that he was not under obligation to appellant been admissible in evidence, its exclusion would not have been reversible error in this case, for the reason that in another portion of his deposition he did so testify without objection.

Appellant assigns as error the action of the court in permitting appellee to prove by said McLean that he (McLean) was on friendly terms with appellant; that appellant had supported him for city marshal in former elections, and that he was at the time of said occurrence a candidate for re-election; that he was boarding a horse with appellant; and that he had borrowed money from appellant. The objection to this testimony is that it is immaterial. The bias or prejudice of a witness for or against a party to a suit is always a material fact. 2 Ency. Evid. p. 406. The facts above proven by the witness were such as to show a probable bias in favor of appellant. To what extent he might be influenced by such facts was a question for the jury.

Appellant assigned as error the action of the court in admitting over appellant's objection the following testimony of J. P. Ferguson: "No; secondhand goods are not worth much on the market. They might be worth a good deal more to somebody that already had them and needed them than they would to get out and try to sell them." This witness Ferguson had been introduced by appellant to prove the value of a portion of the goods described in plaintiffs' petition, and the above testimony was elicited on cross-examination. Ferguson testified that he was in the secondhand furniture business; that he had examined a certain oil stove and album and feather bed exhibited to him the night before. These articles were the same referred to in appellees' petition. The witness testified as to the value of these articles in the condition when he saw them, which was about 13 months after they had been taken from appellees' possession. The witness stated that the oil stove was a $4 stove when new, but in the condition he saw it it was worth about $1. He does not explain what he means by the market value of these articles; that is to say, he does not state whether he means what he would give for them as a secondhand furniture dealer, or what he would ask for them as such dealer. No other witness examined by appellant upon this subject stated that there was any market in Cleburne for secondhand goods of the kind described in appellees' petition. The evidence is insufficient to establish such market, even as to the few articles, the value of which was testified to by the witness Ferguson. The market value of secondhand goods is not what one might get for them from a secondhand dealer, but what it would cost a person to purchase such goods in the open market, if there was a market for such goods. Lincoln v. Packard, 25 Tex. Civ. App. 22, 60 S. W. 682; Insurance Co. v. Wood, 133 S. W. 288.

No market value for such goods being shown, it was competent for appellee to prove that such goods were valuable to him, which is as far as the testimony of the witness Ferguson goes in this respect. Where a party by his wrongful act, willfully done, deprives the owner of property, he ought not to be heard to complain if he is required to make good the damage occasioned by his tort, and to pay the injured party what such goods were worth to him would be no more than making good such injury.

Appellant complains of the refusal of the court to give a special charge to the effect that the cash market value of the goods mentioned in appellees' petition was the measure of damages and to instruct the jury that no evidence of any other value was admitted, and that the argument...