Opinion
No. 4192.
April 29, 1932. Rehearing Denied May 5, 1932.
Appeal from Harrison County Court; R. B. Lindsay, Judge.
Action by the Carter Produce Company against the Herrin Transfer Warehouse Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
The suit is for damages to appellee's automobile caused by a collision. The appellee's automobile going east, and the appellant's truck going west, collided about 9 o'clock p. m., on the highway near the city limits of Marshall. The evidence bearing upon the damage done to the automobile was, in substance, that the impact of the collision bent the front axle and radius rods and other front parts, and broke the steering gear. It was not shown to have been demolished or rendered worthless by the collision. The cost of repairing the injury was shown and that the cost was reasonable. It was proven by Mr. Steele, as pertinent, as follows: "I am a mechanic of 17 years experience in repairing automobiles. I remember looking over the car belonging to the Carter Produce Company said to have been damaged in a collision with a truck belonging to the Herrin Transfer and Warehouse Company, and I made an estimate of the necessary repairs and the cost of labor to repair the car and place it in good condition. I made a written estimate at the time I looked at the car and I gave it to Mr. Carter. That is a list of the parts and the labor that I made at the time I looked at the car. I gave it to Mr. Carter. It showed a total amount of $170.24. That was a reasonable amount for the necessary parts and the labor to put the car in proper repair." It was not shown in the evidence that this cost of repairs was less or not greater than the value of the automobile before the injury. The value of the automobile before or after the injury was not proven. It was proven only that the automobile was a Ford sedan purchased in 1928, and had been driven 49,000 miles, and had been repaired several times since it was purchased, and was in good mechanical condition at the time of the collision.
The suit was instituted in the justice court for $170.24 damages or injury done to the automobile. The case was appealed by the defendant to the county court, where the plaintiff again recovered the sum of $170.24. In the county court the case was submitted to the jury on special issues relating respectively to negligence, contributory negligence, and damages. Issue No. 3, with the answer thereto, reads: "3. In what sum of money was the plaintiff's car damaged by such collision?" Answer returned by the jury: "$170.24." The defendant timely excepted to the instructions submitted "before the court's charge was read to the jury" for the reason that the correct rule of determining or assessing the damages was not given to the jury. The "objection was overruled," and the defendant promptly excepted.
Brown O'Banion, of Marshall, for appellant.
Scott, Casey Hall, of Marshall, for appellee.
The amount of damages to be awarded was made dependent upon the finding of fact made by the jury to the following question: "3. In what sum of money was the plaintiff's car damaged by such collision?" The issue as submitted, in effect, asked of the jury a finding of fact as to the cost of repairing the damage done the automobile in the collision, for the only evidence offered was respecting the costs of repairs. The evidence conclusively showed the automobile was not demolished nor rendered worthless by the collision, but could be put in good condition by making repairs to the cost of $170.24. The appellant presents the point as error that the measure of damages as submitted by the court to the jury is not an accurate, but is an insufficient, measure of compensation for the loss sustained, when applied to the particular circumstances proven in the case. It is contended that in view of the evidence the correct question to be submitted to the jury for finding of fact was that of the difference in the market value of the automobile immediately before and immediately after the collision. The court then would have a verdict upon the two distinct matters of value, affording the means for ascertaining the actual compensation which ought to be awarded to the owner for the loss sustained. The controlling principle to be applied in the awarding of damages for negligent injuries to property, real or personal, is that the owner shall have actual pecuniary compensation commensurate with the loss sustained and no more. 17 C.J. § 52, p. 716; 1 Sutherland on Damages (3d Ed.) § 12; Sabine E. T. Railway v. Joachimi, 58 Tex. 456. What are the elements of injury or loss which may be compensated is a legal inquiry which must be determined by the court, and where the details are capable of pecuniary valuation the law affords some standard for measuring compensation for them. The established general standard or rule for measuring the amount of damages for negligent injury to an automobile is the difference between the value of the automobile immediately before and immediately after the injury. 13 Tex.Jur. § 64, p. 150; 5 Tex.Jur. § 59, p. 640. As can be observed from a perusal of the cases cited, labor and expenditures prudently incurred in the necessary restoration to as good condition as before the injury are regarded as elements of damage, and the amount of recovery is usually to be determined by such legal standard of measuring the actual compensation. The owner may rest on proof of the difference in values of the automobile before and after the injury, or may also prove, in addition to the proof of the difference in values, the cost of repairing, showing that this cost is reasonable. In such case the jury nevertheless would have to make special findings of facts under the standard rule as respects the difference in values of the automobile before and after the injury. C., R. I. G. Ry. v. Zumwalt (Tex.Com.App.) 239 S.W. 912; Thomas v. Goulette (Tex.Civ.App.) 12 S.W.2d 829. Where the difference in values, as found by the jury, is less than the cost of repairs, as found by the jury, such excess of the cost of repairs is not recoverable, because, as determined in the cases, such excess amount is not legally accounted as redress in the form of pecuniary compensation commensurate with the loss sustained only, but of advantage in value to the owner. Had the proof in this case conclusively shown the cost of repairs was less and not greater than the value of the automobile before and after the collision, it is doubtful that reversible error should be predicated upon the finding only upon issue No. 3. There being an absence, though, of such proof, and because thereof, the error complained of requires a reversal of the judgment.
It is believed the appellant may not, under the rule, be held to have waived the submission to the jury of the proper measure of damages. Hence the objections made in the trial court timely pointing out the omission in instruction is sufficient. Gulf, C. S. F. Ry. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; International-Great Northern Ry. v. Casey (Tex.Com.App.) 46 S.W.2d 669. The case of Thompson v. Van Natta (Tex.Civ.App.) 277 S.W. 711, and like cases, has not relation, as here, to matters involving rules of law only.
The judgment is reversed, and the cause remanded.