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JACK COGBILL ET AL. v. FORREST MARTIN ET AL. (12/19/57)

December 19, 1957

JACK COGBILL ET AL., APPELLANTS,
v.
FORREST MARTIN ET AL., APPELLEES



Author: Mcdonald

McDONALD, Chief Justice.

This is a damage suit filed by Forrest Martin and David Dixon for property damage and personal injuries against Jack Cogbill, William Hampton and Gaylord Construction Company, received in a collision between a truck owned by Martin and driven by Dixon, and a truck owned by Cogbill and driven by Cooper in the employment of Gaylord. By way of cross action Cogbill sought damages for his truck and Cooper sought damages for personal injuries. Trial was to a jury, and upon the verdict the Trial Court rendered judgment against the defendants for Dixon for $1,750, and for Martin for $3,000.

Defendants appeal, contending: 1) The Trial Court erred in rendering judgment for plaintiff Martin for $500 loss of income from use of his truck; 2) the Trial Court erred in overruling defendants' objections to Special Issues 3, 5, 13A, 6, 9, 10, and 1; 3) the Trial Court erred in overruling objections of defendants to a statement made by the court, and in limiting cross examination of plaintiff Dixon; 4) the Trial Court erred in refusing to submit defendants' tendered Issues 11, 12 and 13; 5) the Trial Court erred in refusing to grant defendants' motion for judgment non obstante veredicto; 6) the Trial Court erred in entering judgment for plaintiff when the evidence disclosed the absence of a necessary party to the action.

Reverting to defendants' 1st contention -- that the Trial Court erred in rendering judgment for plaintiff Martin for $500 loss of income from use of his truck -- plaintiff Martin, in his petition, pleaded damages based upon the reasonable cash market value of the truck before and after the collision; and in the alternative he pleaded damages based on the cost of repairs to his truck plus damages for loss of income from loss of use of the truck pending repair. No evidence was offered as to the cost of repairing the truck, but several witnesses testified as to its value before and after the collision and all testified that it was totally destroyed. Plaintiff Martin testified that he was making $50 per day from the truck and that after the collision it was 12 or 15 days before he could replace it with a new one, and he consequently lost income during such period. The Trial Court submitted issues to which the jury found: 1) the truck was worth $2,750 prior to the collision; 2) $250 after the collision; 3) Martin lost $500 in income from use of the truck. The Trial Court gave plaintiff Martin judgment for $3,000 (which included the $500 loss of income item).

If a chattel is partially destroyed and can be repaired, the owner may recover not only the cost of replacement, but the reasonable value of the loss of the use of the chattel while it is being repaired. But, when the chattel is totally destroyed, the measure of damages is the difference in the market value immediately before and immediately after injury, and no additional recovery can be had for loss of use of the chattel while it is being replaced. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127; Kansas City S. Ry. Co. v. Frederick, Tex.Civ.App., 276 S.W.2d 332, W/E Ref. NRE; City of Canadian v. Guthrie, Tex.Civ.App., 87 S.W.2d 316.

In the case at bar the evidence reflected that the truck was totally destroyed. The damages in such situation was the value before the collision, $2,750, less the value after the collision, $250, or $2,500. $2,500 is the total damages which plaintiff Martin can collect for his truck, and the Trial Court erred in awarding the $500 damages for loss of use of the truck during the time required for replacement.

Defendants' 2nd contention is levelled at the Trial Court's overruling of objections to Issues 3, 5, 13A, 6, 9, 10, and 1. The complained of issues, together with the jury's answers to same, follow:

"1) Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant Cooper failed to keep and maintain that character of lookout that a person of ordinary prudence in the exercise of ordinary care would have kept and maintained under the same or similar circumstances? (To which the jury answered Yes).

"2) Such failure was a proximate cause of the collision.

"3) Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant, Cooper, failed to yield the right of way to the vehicle being driven by plaintiff Dixon? (To which the jury answered Yes).

"By the term 'right of way', as used in the above issue means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction to its path."

"4) Such failure was negligence.

"5) Do you find from a preponderance of the evidence that such negligence was a proximate cause of the collision made the basis of this suit? (To which the jury answered Yes). "6) Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant, Cooper, failed to reduce the rate of speed at which he was operating the vehicle he was operating? (To which the jury answered No).

"9) Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant, Cooper, was driving and operating the truck at a greater rate of speed than a person of ordinary prudence in the exercise of ordinary care would have driven and operated the same ...


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