Black v. Nabarrette , 281 S.W. 1087 ( 1926 )

JONES, C. J.

H. Black, plaintiff in error, has appealed from an adverse judgment in the sum of $883.40 rendered against him on a trial, before a jury in the district court of Dallas county in favor of J. Nabarrette, defendant in error. The facts are as follows:

Plaintiff in error was the owner of two tenant houses in the city of Dallas at 2405 and 2403 Alamo street, in which several parties resided. These tenants owned such household and kitchen furniture and like property that they used in keeping house. On or about the 1st day of May, 1923, the house at 2405 Alamo street caught fire and the flames rapidly spread to the house at 2403 Alamo street, with the result that all the effects in said houses owned by the various parties were either entirely consumed by fire or so damaged as to render them a total loss. Defendant in error lived with his family in the house located.at 2403 Alamo street, and, before the filing of this suit, the other parties who suffered loss from the fire assigned their claims for damages to defendant in error, who, for his own loss and as as-signee of the said claims of the other tenants, filed this suit in said district court against plaintiff in error on allegations charging that he “did wrongfully, unlawfully, and' maliciously set fire to house No. 2405 Alamo street in the city of Dallas.” Plaintiff in error placed his personal damage in the sum of $571, itemizing the various articles claimed to have been destroyed. Juan Gusman’s damages were placed at $431.80, with the various articles itemized; Rodolpho Ganzales’ damages were placed at $525, with the various articles itemized; Josie De Lion’s damages were placed at $87, being carpenter’s tools; and Francisco Echeberia’s damages were placed at $80 for loss on a small portable house owned by him and destroyed by said fire.

The case was submitted to the jury on special issues and, in response to said issues, the jury returned a verdict sustaining the allegations of defendant in error, to the effect that H. Black unlawfully originated the fire that resulted in the destruction of the property above named, and placed the damages as follows: For the property owned by J. Nabar-rette, plaintiff in error, at the time of the fire, $250; for the property owned by Juan Gus-man, $262.40; for the property owned by Rodolpho Ganzales, $300; for the portable house owned by Francisco Echeberia, $50; for the carpenter’s tools owned by Josie De Lion, $21.50, making a total of $883.90. On this, judgment was entered in the sum of $883.40.

Plaintiff in error has assigned error on the findings of the jury in reference to the amount of each loss above given, except that of Francisco Echeberia, on the ground that each of said findings is not supported by the evidence. There is no assignment of error in reference to the amount awarded on the loss of Echeberia for the portable house, nor is there any assignment of error as to the finding of the jury that the loss resulted from the unlawful act of plaintiff in error.

We aré unable to agree to plaintiff in error’s contention made in his said assignments of error, but believe that the verdict in each instance is supported by the evidence. Each of the parties, except De Lion, testified to the property owned by him that was consumed by the fire, and each testified that in the aggregate his property was of the value of the amount claimed in the petition. Either on direct or cross examination, the various items of loss in each instance were described as to their condition at the time of the fire, the approximate length of time they had been used and the use to which they had been put, and, in most instances, the said items were separately valued and their cost to the owner given. A witness testified to the value of the box of carpenter’s tools.

It is true the jury in no instance found the loss to be equal to the amount placed by the witness testifying to this loss, but the jury was given a basis by the testimony given on which to determine the value of such property at the time of the fire. This value cannot be ascertained by an inquiry into the market value of the various items, but must be determined from the owner’s sworn estimate of its fair and reasonable value to him, this estimate to be weighed by the jury in the light of testimony as to the original cost of the articles, the manner in which they had been used, their general condition and quality at the time of their destruction. Wells Fargo Express Co. v. Williams (Tex. Civ. App.) 71 S. W. 314; I. & G. N. Ry. Co. v. Martin Nicholson, 61 Tex. 550; G., H. & S. A. Ry. Co. v. Wallraven (Tex. Civ. App.) 160 S. W. 116; Pecos & N. T. Railway Co. et al. v. Grundy et al. (Tex. Civ. App.) 171 S. W. 318.

All of the facts that enter into and were made essential elements to determine the value of goods of this character lost by fire are given in evidence, and the jury was authorized to determine from this evidence the value of the property destroyed.

Complaint is also made that in some instances some articles were testified to as lost that were not included in the itemized statement in the petition. We have'Carefully checked these items .over and find that in each instance they were almost of inconsequential value. After the various articles had been itemized in the petition it contained this allegation that “plaintiff shows that he cannot more fully itemize and better describe said property.”. There was no objection made to the evidence of the articles not specifically itemized. In view of this fact, and in view of the above allegation, and of the further fact that the jury reduced the amount of the damages as testified to by the witnesses nearly 50 per cent, we do not think this constitutes reversible error.

It is the opinion of the court that this cause should be affirmed.

Affirmed.