The opinion
Appellant presented and urged 13 assignments of error. All the assignments were overruled by the majority opinion of this court except three, and those three will be briefly discussed.
Taking the viewpoint of the case of the majority opinion, it should have been followed with an affirmance of the judgment.
Assignment No. 3 is based upon special charge No. 2, requested by appellant and refused by the court, as follows:
"Gentlemen of the Jury: At the request of the defendant, and as part of the law of this case, you are instructed that, in determining the reasonable value of the use of the plaintiff's outfit, you will limit the same to the reasonable value of the use of said outfit as a contracting outfit and devoted to such use as the plaintiff had carried on prior to the seizure of said outfit under sequestration."
This charge limits the jury to a consideration only of the value of the use of said outfit, as a contracting outfit, devoted to such use as plaintiff had carried on prior to the seizure of said outfit under sequestration. Then in the third charge, refused, to the same effect, which specifically tells the jury not to base their estimate upon the daily, weekly, or monthly value of the use of said outfit, nor base the estimate upon the value of the use of one team, wagon, and harness for either the whole of said period or a shorter period than the whole, but "You will determine the value of the use of said entire outfit as described in the plaintiff's petition for said entire period of time from June 1, 1917, to this date." The court had already told the jury in instruction No. 1 to ascertain the value of the use of the plaintiff's outfit from the 1st day of June, 1917, to this date. Hudson v. Wilkinson, 45 Tex. 453 .
He was entitled to recover the value of the use of the property for any purpose for which it was adapted. Every quality or value of the property that entered into it, and the use to which it could be put, is a proper matter for the jury to consider. The particular purposes to which property is devoted or may be adapted may be shown by evidence. It is to be conceded that jurors are reasonable men of ordinary judgment and intelligence, and from the evidence introduced and permitted to go before them, under definite instructions from the court, will be able to ascertain the value of the use of the "outfit" The proof of value must of necessity and at last come from the opinion and judgment of witnesses based upon what they hear, whether in a sense that be hearsay or not. If it has no market value, then it may be shown by those elements affecting the same as they exist, such as costs, its utility, and the uses to which it may be put.
As the court instructed the jury to as certain the value of the w hole for a definite period, it would have added nothing to tell *Page 564
them not to base their estimate in the certain way named upon the value of one team, wagon, harness, etc., for a shorter period than the whole, and then tell them to determine the value of the use of the entire outfit for the entire period. Craddock v. Goodwin, 54 Tex. 588 ; Railway v. Brousard, 69 Tex. 624 , 7 S.W. 374 . Whether there was evidence of any such item for a month or more of a single team or harness, etc., the jury had a right to consider and base their judgment upon the whole testimony introduced, and it would have been error to so instruct and tell the jury not to base their estimate upon this testimony in connection with the whole to reach such verdict as they were instructed by the court to ascertain for the entire period. There is no objection to the testimony. If the testimony was properly admitted in the case on the issue involved, such a charge would have been error. Railway v. Brousard, 69 Tex. 624 , 7 S.W. 378 ; for as Judge Stayton said:
"A charge of this kind is objectionable in any case, and it is always better to leave the jury to reach their conclusions, under the evidence properly before them, and the charge of the court as to the law of the case, through such modes of reasoning and processes of thought as each juror may, unaided by suggestions from the court, naturally and without constraint pursue."
Such an instruction would have prevented appellee from proving a single element of damage shorter than the named period of time, whether it be one team, or any of the property, whether for one month or many months. The testimony showing that appellant had deprived him of the use of his property for nearly three years, the inquiry was directed for the certain period of such claimed illegal holding, and the jury should be permitted to take into consideration the value of the use or hire of the property for the whole time for which the appellee was deprived of its use. Craddock v. Goodwin, 54 Tex. 588 . From this it appears to us that there was no error in the trial court's ruling.
This brings us to the last assignment sustained by the majority opinion as the twelfth, as follows:
"The court erred in permitting the plaintiff, Paul Gallas, while on the stand as a witness in his own behalf, to testify in answer to questions propounded by his own counsel, and over defendant's objection, that: `In the last eighteen months it was, they paid big, far bigger price than they did before that, over two years ago, commencing back the 1st of June, 1917. I should think about $35 per month. The value of the use at $35 per month lasted till about a year ago. From about a year ago to the present time they are paying big prices for work. I think about $40 per month;' the witness having testified earlier in the trial that he did not know the value in use of an outfit such as his own, the court by its rulings having permitted an examination of the witness seeking to establish the rental value of a suit of one team, wagon, and harness, over the objection of defendant, and having expressly ruled that said witness was not qualified to testify as to such rental value."
The only proposition thereunder is:
"Where a witness has been held disqualified to testify concerning the rental value of property, it is error to permit said witness to testify in response to questions concerning the value and use of such property, where from the witness's answer it is made plain that he has in fact testified concerning rental value."
And the only statement thereunder is:
"The proceeding complained of is fully set out in defendant's bill of exception No. 1, found in second preceding statement. On account of its length, we beg to make reference rather than to repeat."
There is no other preceding or any other additional statement under said assignment, and no authorities whatever cited thereunder to support the contention. Turning to the so-called "second preceding statement," we find no bill of exception set out, but turning to cited page in the transcript, we find a bill of exception No. 1, which complains of the court in permitting defendant to testify as to the use of the team of mules and wagon without stating the grounds; but, from the colloquy engaged in throughout the bill by counsel, the contention was that the witness was disqualified to testify. The ending of the bill shows this true, for he says:
"To which action of the court in, after having held, as hereinbefore shown, that witness was disqualified, thus permitting him to testify over the objection of defendant as to the value of the use of the team of mules and wagon," etc.
He cannot except on one ground in the trial court and assign another different one here. Kimmarle Hirsch v. Ry., 76 Tex. 692 , 12 S.W. 698 . The appellant made no objection to the character of evidence, and the verdict is far less than placed by the witnesses. The objection throughout was as to the disqualification of the witness to give the testimony at all on the subject. Hudson v. Wilkinson, supra.
In discussing this assignment we do not believe any reference should be made to the statements made by the jury, nor the opinion in the least predicated thereupon; for their action in the consideration of questions discussed by them in the jury room are not subject to review unless had in such way as to show misconduct. It is not claimed there was any misconduct there, and the trial judge found there was none.
The only testimony complained of in this assignment in effect is:
"In last 18 months paid bigger prices than before that — over two years ago, commencing *Page 565
back the first of June, 1917, $35 per month. The value of the use at $35 per month lasted until about a year ago. From about a year ago to the present time they are paying big prices for work, think $40."
Take this assignment as it is, in the abstract, and without any statement under it, it is not clear. It proceeds and says the witness had testified he did not know the value in use of an outfit such as his own, the court having permitted an examination of the witness seeking to establish the rental value of a suit of one team, wagon, and harness, over the objection of defendant, and having ruled that said witness was not qualified to testify as to such rental value. The assignment does not go to the question that the testimony was improperly admitted, because there was no legal proof offered that there was no market value for the hire of such an outfit.
The question, stated in a more concrete form, would be that where no proof can be made of the market value in use of an outfit consisting of teams, wagons, harness, as a whole, in which he was engaged in doing contract work, is it proper to make such proof of the value of the use so as to ascertain the entire value of the whole by proof of separate values for the use of each from time to time during the entire period, when it is shown there is no market value? I believe it may be done in connection with the other proof, or else it would mean to authorize a person to ruthlessly disregard the rights of others and take his property, escape liability, and say, "You cannot be heard to complain since you cannot prove the market value of the entire outfit as such, and there is no other way known to the law for you to do it." We do not think the court erred. In the absence of the proof of market value, we can resort to proof of the value of the use lost to him. Watt v. Nevada Central R. R. Co., 23 Nev. 154 , 44 P. 423 , 46 P. 52 , 726 , 62 Am.St.Rep. 772 . See the note for an interesting discussion of the law of damages. It is not a correct rule, in assessing the measure of damages, to confine the jury to the use of work horses, to their value and hire by the day, month, or the year for the long period. The object in view is to compensate for the injury done, and the jury should be allowed to take into consideration the value of the use and hire of the entire outfit, and allow such an amount for actual damages as will compensate the plaintiffs, whether computing it by the rule of interest or that of hire, or value of the use, as may seem to them most adequate to that result. Craddock v. Goodwin, 54 Tex. 588 ; Hudson v. Wilkinson, 45 Tex. 445 ; Hull v. Davidson, 6 Tex. Civ. App. 588 , 25 S.W. 1048 ; Hermann v. Allen, 118 S.W. 797 : Parlin Orendorff Co. v. Kittrell, 95 S.W. 705 ; Reiley v. Hopkins, 50 Tex. Civ. App. 600 , 110 S.W. 780 ; Waller, Sheriff et al. v. Hail, 46 S.W. 82 .
We think a recovery may be had for the loss of the use of specific property, where the reasonable worth of such use may be shown with certainty; such compensation being based upon the rental value, or hire, of the property taken or destroyed, from the time of the taking or the destruction up to the time when, with reasonable diligence, it could have been replaced or restored; whether it was, in fact, restored or replaced, or not. Bennett v. Lockwood, 32 Am.Dec. 532, note; Higgins v. Los Angeles Gas Co., 159 Cal. 651 , 115 P. 313 , 34 L.R.A. (N.S.) 717 .
We think, also, as a general rule, the measure of damages for the taking, conversion, loss, or destruction of personal property is its value, or reasonable worth, at the time and the place of its taking or destruction, and ordinarily such value is based upon the "market value," if it has any; otherwise the plaintiff is permitted to recover the value of the property to him, based on his actual money loss. Hillebrant v. Brewer, 6 Tex. 45 , 55 Am.Dec. 757 ; Watt v. Nevada R. R., 23 Nev. 154 , 44 P. 423 , 46 P. 52 , 726 , 62 Am.St.Rep. 772 .
The failure to prove market value because there is none will not defeat the right to recover. Its value can be shown by the uses to which it is put or is adapted. Land Mortg. Co. v. Campbell, 98 Tex. 376 , 84 S.W. 424 ; Boyer Lucas v. St. L., S. F. T. Ry. Co., 97 Tex. 107 , 76 S.W. 441 ; Jones on Evidence, § 169 (1913 Ed.); Jones on Evidence (2d. Ed.) §§ 363 and 387; Ry. v. Dunman, 85 Tex. 176 -181, 19 S.W. 1073 . Special attention is called to this last page. Head v. Hargrave, 105 U.S. 45 , 26 L.Ed. 1028 . In passing upon the question of damages and considering testimony of witnesses great discretion is lodged with juries. The Conqueror, 166 U.S. 110 , 17 Sup.Ct. 510 , 41 L.Ed. 937 ; Hull v. City St. Louis, 138 Mo. 618 , 40 S.W. 89 , 42 L.R.A. 753 . Especial attention is called to the note.
The value in use of an outfit such as presented in this case, under the testimony, is hardly susceptible of proof of its market value, except in the manner adopted, which we believe is sufficient. That our viewpoint may appear clear, we shall quote from appellee, Paul Gallas, himself. He said:
"I know the reasonable value of mules now, such as those, in the condition I saw them — not in San Antonio, I know what they are worth in our country, Wichita Falls. I know what would be the value of the use of those mules up there, well, on contracts. I never hired any teams, but what I heard — it is from $30 to $35 a month for a team of mules and wagon; the man who hired them fed the team. I don't know of any transaction myself by which I would know the value of the use of such mules; just what I hear people say they are *Page 566
paying for mules what they hired, what they have to pay for mules."
And, further, upon cross-examination, stated:
"Yes; I am suing in this action to recover the value of the use of these mules Mr. Montgomery has unlawfully taken away from me and deprived me of their use. I said these mules were worth, in use to me, $35 per month per team, wagon, and harness — for the whole of that time; no, that is not my testimony. I said that is what they were paying. I said that's what mules were bringing by the month. What was the value of the use to me of such an outfit? Well, I can tell you what I am getting for all I got — these would be worth the same thing. In 1917 there was no railroad work going on — very little any kind of road work; some little work going on; the war stopped most of it. If I had gotten these teams I could have gotten some work if I had gone around for it. * * *"
Here is a man testifying that he has been in the contracting business about 13 or 14 years, using wagons, etc., doing that kind of work all that time, states he knows the value of the use of a team of mules and wagon such as he had used, and then stated their value. We cannot perceive wherein he is disqualified to testify, or that such testimony itself, unobjected to, is not to be considered.
It is to be noticed that appellant did not go on the witness stand. He no doubt could have illuminated the issues of fact very much; but he did not, nor was any other witness placed on the stand by appellant on the point interrogated as to the value of the use or the market value thereof; so appellee's testimony stands uncontradicted and undisputed. Besides, the testimony of Paul Gallas, the appellee, there was Henry Cullam, who testified he was a grading contractor, and had for 15 years been constantly in that business, and in it in 1917, 1918, and 1919, and testified:
"In the conduct of my grade contracting business, I have been hiring and paying for the use of mules, wagons, harness, tents, water wagons, etc., during the entire time I have been conducting such business, about fifteen years, and this has given me a thorough knowledge of the value of the use of such outfits. I know what was the value of the use of such an outfit during the years 1917, 1918, and 1919, commencing June 1, 1917. The value of the use of an outfit described as consisting of 22 mules, averaging about 16 hands high, well built, in good condition, ranging in age from seven to fifteen years, eleven wagons that had been used in doing contracting work in road-making about one year, but in good condition, four tents that had been used for over a year, one water tank that had been used about a year, nine sets of harness that had been used a little over a year, for the period of time beginning on the 1st of June, 1917, and extending down to the present time; yes, the value of the use of such an outfit would be $24,955 for the time mentioned; for one year, the value would be $9,660.00. The value of the use of such an outfit would be $805 per month during said period. * * *"
He also states the depreciation is about 10 per cent. per annum, and for 31 months 26 per cent.
T. A. Griffin also testified:
"My opportunity for acquiring knowledge of the value of the use of contracting outfits consisting of mules, wagons, tents, water wagon, and harness has been the actual hiring and using of such outfits during my experience in the grading business, and I know what was the value of the use of such outfits in the state of Texas during the years 1917, 1918, and 1919, commencing with the 1st day of June, 1917. The value of the use of a contracting outfit consisting of 22 mules, averaging about 16 hands high, well built, in good condition, and ranging in age from 7 to 15 years, 11 wagons that had been used in doing contracting work in road-making about one year but were in good condition, four tents that had been used for over a year, one water tank that had been used for about a year, and nine sets of harness that had been used a little over a year, for the period of time beginning on the 1st day of June, 1917, and extending down to the present time, I know the value of such an outfit for such period; in my opinion, the value would be $23,250 for the entire period. For one year it would be $9,000. It would be $750 per month, in Texas."
He also stated the depreciation for the entire length of time would be 25 per cent.
Whether their testimony placed the value of the use of the property annually instead of monthly does not change the fact that appellee showed a case of damages.
We have no right to invade the province of the jury and examine their method of calculation, in the absence of improper conduct, to see which witnesses they believed and which they disregarded entirely, if there is sufficient evidence to base a verdict upon any theory.
In Hudson v. Wilkinson, supra, no instruction was given on the question involved, and the judgment of the trial court was not reversed on account of the fact that the jury had reached their verdict by multiplying the number of days that the property was used by the value of the use of the property by the day as testified to by the witnesses. There was no such testimony here. The intimation in that and similar cases is clear the judgment would not be reversed merely because the jury had rendered an excessive verdict by making their calculation in this manner. There is nothing there or in any of the decisions that supports the contention that those instructions requested support correct propositions of law. The court could not so far invade the province of the jury as to tell them upon what testimony to base their verdict and what not.
The return and statement of the sheriff *Page 567
as to value of the property seized in this case was held admissible. There was testimony, besides this, of other witnesses as to value of the "outfit," and the trial court could not instruct them to disregard any of this evidence, nor upon what phase of all the evidence the court permitted to go before them in reaching a verdict. Suppose we eliminate the testimony of any one or any two of the witnesses for the reasons stated, that would not lead us necessarily to reverse this judgment, because the verdict is based upon some calculation of the jury, not to the full extent of the entire proof, nor lead to the deduction that the jury disbelieved any of them. They could, in making up their verdict, consider all the testimony in its various phases, then apply a heavier per cent. of discount for depreciation, add interest, or eliminate items of cost, or any other reasonable deduction less than the full amount claimed and testified about. But because it is greatly less than the proof, and because the jury adopted the lowest figure, is nothing of which the plaintiff can complain, if on the whole case there is proof sufficient to sustain the verdict for a lesser amount. It might require a consideration thereof as to its excess had the verdict reached the full measure of the evidence. There is legal evidence, therefore, in the record to sustain this verdict, whether we only considered that of appellee, or his in connection with the other witnesses. Land Mortgage Co. v. Campbell, 98 Tex. 375 , 84 S.W. 424 .
It is not so material now whether the charge on malice was a clear enunciation of the law in such cases or not, as the case is reversed, and appellee will have an opportunity to amend his pleadings if supposed necessary, and more definitely submit the issue of malice to the jury. Under the pleadings and evidence it should have been submitted in some form.
Appellee does not point out what portion of the judgment he thinks we should cause him to remit and what part to affirm. There is nothing we can do in the way of remittitur, without appellee had set out the basis of his willingness to surrender any part thereof, naming the sum.
I cannot agree with may Brethren in the disposition they make of this case; therefore enter my dissent and nonconcurrence.