Wichita Falls & Oklahoma Ry. Co. v. Pepper

• Citation: 135 S.W.2d 79
• Decision Date: 10 January 1940
• Docket Number: No. 7243.,7243.
• Parties: WICHITA FALLS & OKLAHOMA RY. CO. et al. v. PEPPER.
• Court: Supreme Court of Texas

Page 79

135 S.W.2d 79

WICHITA FALLS & OKLAHOMA RY. CO. et al. v. PEPPER.

No. 7243.

Supreme Court of Texas.

January 10, 1940.

Error to Court of Civil Appeals, of Second Supreme Judicial District.

Action by A. C. Pepper against the Wichita Falls & Oklahoma Railway Company and another for damages to growing crops from flooding. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 101 S.W.2d 365, and defendants bring error.

Affirmed.

Taylor, Muse & Taylor, of Wichita Falls, and Thompson & Barwise and Luther Hudson, all of Fort Worth, for plaintiff in error.

Bunting & Stine, of Henrietta, for defendant in error.

SHARP, Justice.

The principal question presented here relates to the power of the trial court to enter judgment in a cause submitted to a jury on special issues, in the absence of the submission to the jury of certain issues, and a finding made thereon by the jury, under the provisions of Art. 2190, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2190.

The parties hereto will be designated as they were in the trial court. A. C. Pepper sued the Wichita Falls & Oklahoma Railway Company and the Wichita Valley Railway Company for damages to his growing crops, based upon the negligence of the defendants by causing flood waters to cover the land. The case was submitted to the jury on special issues, and judgment was rendered for plaintiff. The Court of Civil Appeals at Fort Worth affirmed the judgment of the trial court. 101 S.W.2d 365. In view of the confusion that has resulted from the construction of Art. 2190, this court has decided to re-examine the question and reannounce rules relating to the submission of special issues. For this purpose a writ of error was granted.

The gist of defendant's main contention is that, this being a suit for partial damages to crops, and not for total loss, no proper judgment could be rendered on the verdict of the jury as to the loss sustained to the cotton crop because of the failure of the trial court to submit to the jury an issue as to what amount of cotton was actually raised by plaintiff on the land, and because of such failure the trial court could not take that question from the jury and determine same for the purpose of rendering a judgment on other issues answered.

Pepper was occupying certain land as a tenant, and alleged that his damage resulted from the failure of defendants to maintain adequate culverts and sluiceways beneath its roadway, and that defendants had negligently piled a large number of timbers or piling in the borrow pit, which obstructed the flow of water from the land occupied by plaintiff. He claimed damages for the total destruction of a three-acre garden tract and partial destruction of his cotton crop. The jury found that the defendants failed to maintain adequate culverts and sluiceways.

The case was submitted to the jury on special issues, and the jury found that the acts of the defendants complained of by plaintiff constituted negligence, and that such negligence was the proximate cause of the damage to plaintiff's crops and garden.

Special issue No. 10 and the answer of the jury thereto read as follows: "What do you find, from a preponderance of the evidence would have been the number of bushels of corn that plaintiff would have raised from the corn that was up on June 13th had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that same was damaged by the acts of the defendants)? In answering this issue you will take into consideration the three-thirds of the crop and not merely the tenants portion." Answer: "3,760 bushels."

In answer to special issue No. 10a the jury found that the plaintiff produced from the corn that was up on June 13th 1,575 bushels. In answer to special issue No. 11 the jury found that the reasonable cost after June 13th of cultivating, gathering, and marketing said corn was $205.50. In answer to special issue No. 12 the jury found that the value per bushel of the corn mentioned in special issues Nos. 10a and 11 would have been 50¢ per bushel.

Special issue No. 13 and the answer of the jury thereto read as follows: "What do you find from a preponderance of the evidence would have been the number of bales of cotton of an average weight of 500 pounds that plaintiff would have raised had it not been damaged by the acts of the defendants heretofore inquired about (if you have found that the same was damaged by the acts of the defendants)? In answering this issue you will take into consideration the four-fourths of the crop and not merely the tenant's portion." Answer: "28 bales."

In answer to special issue No. 14 the jury found that the reasonable cost after June 13th of cultivating, picking, ginning, and marketing the cotton, had it not been so damaged, was the sum of $586.10. In answer to special issue No. 15 the jury found that the value per pound of said cotton at the time of maturity and marketing same was 11¢ per pound. In answer to special issue No. 16 the jury found that the reasonable value of the plaintiff's garden to him was $300. In answer to special issue No. 17 the jury found that the garden which was growing on June 13th was totally destroyed. In answer to special issue No. 18 the jury found that plaintiff raised 200 bushels of corn after June 13th; and in answer to special issue No. 19 that the value of such corn was 50¢ per bushel. In answer to special issue No. 20 the jury found that the reasonable cost of planting, cultivating, and marketing said corn was $23. In answer to special issue No. 21 the jury found that plaintiff raised 475 bushels of millet after June 13th, and further found that the value of said millet was $1 per bushel. They further found that the reasonable cost of planting and marketing said millet was $207.

The jury also found, in answer to special issue No. 24, that plaintiff would make 2,000 pounds of maize; and in answer to other issues found the value thereof. Such issues are not material here.

At the conclusion of the testimony the defendants requested the trial court to instruct the jury to return a verdict for defendants,—which the trial court refused. After the conclusion of the testimony, and before the court had read his charge to the jury, the defendants urged only the following objections to such issues:

"Now come defendants, * * * and specially object and except to that part of Special Issue No. 10, as follows: `If you have found that same was damaged by the acts of the defendants'; and in this connection object and except to the action of the Court in not including the word `negligent' just preceding the word `acts' in said clause for the reason that the defendants would not be liable in anywise to the plaintiff for any acts except negligent acts and the issue as given is prejudicial to the rights of the defendants.

"The defendants also object and except to the Special Issue No. 13 in the same way and manner as set out in the preceding objection and exception."

The Court of Civil Appeals, 101 S.W.2d 365, 367, in its opinion makes the following statement: "The testimony of plaintiff, which in this respect is uncontradicted, shows plaintiff gathered three bales of cotton from the premises. The defendants in their brief make an extensive and complete calculation in the form of an account as to the probable elements the court must have considered in arriving at the judgment entered. The plaintiff agrees that the statement so made is substantially correct. We have verified these figures by the record and find they are well supported by the testimony. It was found by the jury that plaintiff should have made 28 bales of cotton; that it would require an expense of $586.10 to cultivate, harvest, and market the cotton after the date of the overflow, had it not been damaged; that the cotton would have been worth $55 per bale. The court, in making up his judgment, deducted from the 28 bales the 3 bales shown to have been made and gathered, leaving a loss to plaintiff of his three-fourths interest in the remaining 25 bales and from the value of these he deducted the expense found by the jury to be necessary in cultivating, harvesting, and marketing, the result found by the court being a net loss on the cotton to plaintiff of $445.65."

The Court of Civil Appeals also makes the following statement:

"The jury found in response to a special issue that the garden was totally destroyed, and to another issue, that its reasonable value to the plaintiff was $300. The testimony is not entirely clear as disclosed by the statement of facts, that the value of the garden would have been worth to plaintiff the amount claimed, over and above the expense of finishing its cultivation and the canning of that part which would not be consumed during the growing season. He testified that his own family, and those of his two sons and his hired hand, would consume a part of it before the canning season, but that by their own labor they would have canned the remainder for home consumption; that $10 in labor would have cultivated it and $25 or $30 would have purchased necessary cans; yet he finally testified that his estimate of its value of $300 was arrived at by taking all of these things into consideration and that it would be worth $300 to him after it was canned. The jury had all of this testimony before them and found its value to be $300, and we find no reason to disturb their verdict.

"The testimony further disclosed that after the destruction and damages to his corn and cotton, he planted late forage crops and realized approximately $188.33 therefrom. The court's judgment was in favor of plaintiff for $1,079.65. An analysis of the jury's verdict shows his net loss to the corn was $528.33; his loss to the cotton was $445.65, and to the garden $300; these added together make a total of $1,273.98 and deducting the value of the late crop of $188.33 leaves the total net loss of $1,085.65."

In response to certain...