Texas Co. v. Lacour

• Citation: 122 S.W. 424
• Parties: TEXAS CO. v. LACOUR.
• Decision Date: 12 November 1909
• Court: Court of Appeals of Texas

122 S.W. 424

TEXAS CO. v. LACOUR.

Court of Civil Appeals of Texas.

November 12, 1909.

Appeal from Liberty County Court; I. B. Simmons, Judge.

Action by J. G. Lacour against the Texas Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Robertson & Whitaker, for appellant. Marshall & Marshall, for appellee.

JAMES, C. J.

This appeal is from a judgment against appellant for damages for injury done to a growing rice crop, alleged to have been caused by the appellant laying its pipe over the land occupied by appellee's crop.

The jury were instructed on the measure of damages that it was the value of the damaged rice immediately before and after the injury. Plaintiff, Lacour, testified: "I cannot say what the value of the rice was at the time it was damaged; could only figure what it would have made." It is evident from this testimony that a jury would be as unable to determine the value of the injured crop at the time of the injury as plaintiff was, and that the only way to arrive at plaintiff's loss was, as plaintiff himself says, on the basis of what the crop would have made. This is the approved standard of damages in this character of case. Stated in a general way, it is the difference between the value of what it would have produced, and the value of what was produced, after deducting the expense of cultivating, harvesting, and marketing. I. & G. N. R. R. Co. v. Pape, 73 Tex. 503, 11 S. W. 526; Railway v. McGowan, 73 Tex. 362, 11 S. W. 336; Railway Co. v. Borsky, 2 Tex. Civ. App. 545, 21 S. W. 1012; City of Paris v. Tucker (Civ. App.) 93 S. W. 233.

Appellee contends that, because he showed what the crop would have afterwards brought in the market, this was enough to enable the jury to ascertain his loss. Clearly not. He also contends that when he showed this, and what the few sacks which he succeeded in getting off this particular land sold for, the burden of proof shifted, and, this being a tort case, as distinguished from contract, it devolved on defendant to show, if he desired, what the expense of making and marketing the crop would amount to. The burden of proof did not shift. It rested upon plaintiff to make out a case, and to adduce what was proof of his loss; and proof of what the yield would have been, and what it would have sold for in gross, and what the yield actually was, and what it sold for in gross, was not proof of what represented his loss. He failed to furnish the jury with sufficient evidence to...