M.K. T. Ry. Co. v. Davidson , 25 Tex. Civ. App. 134 ( 1901 )

Suit for damages; judgment by default and damages subsequently assessed by a jury. Defendant has appealed. On the points presented for decision, we hold:

1. No error was committed in overruling the motion to set aside the judgment by default. The citation was served thirteen days before appearance day, the day on which the judgment by default was rendered, and, if it be conceded that the attorneys who presented the motion and represent appellant in this court exercised sufficient diligence, we can not hold that other agents and representatives of appellant were not guilty of negligence in reference to filing an answer. The citation went into the hands of the general attorney twelve days before appearance day, and no sufficient excuse is shown for his failure to file an answer or place the matter in the hands of other attorneys in time for them to file an answer. Besides, the defense set up in the motion was insufficient. It did not state that the flood which caused the injuries complained of by the plaintiff was unprecedented, but denominated it an extraordinary and unusual rainfall or flood. This was not sufficient. The law requires railroads in the construction of their roadbeds to guard against all such floods as may be anticipated, though some of them may be extraordinary and unusual. Railway v. Pomeroy, 67 Tex. 498.

2. We do not think the court erred in permitting the appellant to prove the intrinsic value of the property lost. The petition alleged in general terms that the various articles were of the value of so many dollars. This did not limit the plaintiff to proof of market value; and, having proved that the property had no market value, proof of its intrinsic value was admissible.

3. The court did not err in excluding the proffered testimony of S.M. Strayhorn. It was not competent for him to give his estimate of the amount of the plaintiff's loss. Such testimony is not in any proper sense expert evidence. It was not proposed to prove by the witness that he had seen the property and had knowledge of its value.

4. We do not feel justified in holding that the verdict is excessive, except to the extent of 80 cents, and for this amount the appellee has filed a remittitur. It is true, the plaintiff testified that some of the furniture for the value of which the suit was brought had been in use by himself and family for several years, and was worth as much at the time of its loss as he paid for it; and while there may be an air of improbability about this statement, we do not feel justified in holding that it was necessarily false. Just how much a particular article of furniture is worth to the family owning and using it may, in many instances, be difficult to determine; and in all instances value is largely a matter of opinion. Besides, it was not shown that the plaintiff paid full value for the articles when he bought them. If he bought them for half their value, it is not unreasonable to conclude that they were worth the amount he paid for them at the time they were destroyed.

The judgment will be reformed so as to reduce the plaintiff's recovery to 80 cents less than the amount stated in the judgment. However, as this excess is so slight, we do not think it should have any bearing on the question of costs; and therefore the costs of the appeal will be taxed against appellant.

Reformed and affirmed.