McAllister v. Grice

BARCUS, J. In September, 1922, appellee was a tenant on the farms of appellant H. B. McAllister and Mrs. H. C. Tatum. McAllis-ter filed suit in the county court against ap-pellee for debt, and filed application and bond for a writ of attachment, and appellant Clint Pitts, as sheriff of Navarro county, levied the writ upon seven head of mules -and horses, one bale of picked cotton, and about ten bales of unpicked cotton on the farms rented by appellee. During the pend-ency of the suit all of the property levied on was by order of the court sold as perishable property, and the proceeds therefrom paid into the registry of the county court. The suit in the county court resulted in judgment being rendered for BlcAllister against appel-lee for $1,099.94, including costs of court, and the proceeds derived from the sale of the property were used to pay said judgment and pay the rental due the landlords of Grice, and the remainder thereof, $262.50, was paid to, and received by, appellee, W. B. Grice. Thereafter this suit was instituted by ap-pellee against BlcAllister and his bondsmen and the sheriff and his bondsmen to recover both actual and exemplary damages which he claims to have suffered by reason of said attachment having been wrongfully and maliciously issued and served. The cause was tried to a jury, submitted on special issues, and resulted in judgment being entered for appellee for $692.25 actual damages and $1,-250 exemplary damages. By their first assignment appellants complain of the action of the trial court in permitting appellee to read in evidence a letter which was written by appellee to the sheriff a few days after the writ of attachment was levied. The letter was objected to as a whole. There were certain portions of the letter, especially that portion which gave the sheriff notice that appellee claimed .the property as exempt, that were admissible in evidence, and, since the letter was objected to as a whole, and portions thereof were admissible, the assignment is overruled. Dolan v. Meehan (Tex. Civ. App.) 80 S. W. 99; St. L. S. W. Ry. Co. v. Moore (Tex. Civ. App.) 173 S. W. 905. *1002 Appellants complain of the action of the trial court in refusing to permit them to show by appellee on cross-examination, while he was on the stand, after testifying in his own behalf, that he purchased five head of the stock in controversy from Jordan after same had been sold by the sheriff: for the sum of $130.75. The record shows the stock were sold by the sheriff! under the attachment proceeding to Jordan for $130.75, and appellants offered to show that appellee purchased the same stock from Jordan for $130.-75. In a suit for conversion, the measure of damages is the loss which the party has suffered by reason of the property having been taken away from him, and, if by any method he thereafter obtains possession thereof, his measure of damages is, not its total value, but the depreciation in its value while it was withheld from him, plus the expense and cost which he incurred in getting said property. Field v. Munster, 11 Tex. Civ. App. 341; Id., 89 Tex. 102, 32 S. W. 417, 33 S. W. 852; Scott v. Childers, 24 Tex. Civ. App. 349, 60 S. W. 775. Grice testified on direct examination that the five horses and mules were worth $550, and the bill of exception shows that, if he had been permitted, he would have testified that he purchased same from Jordan after they were taken from him for the sum of $130.75. Manifestly it would be unjust, as is said in the case of Field v. Munster, supra, to permit appellee to recover the full value of the five head of stock when he had obtained the same five head in as good condition as when taken from him at an expense of $130.75. We sustain this assignment. This testimony was admissible both for the purpose of contradicting appellee as to the value he placed on the stock and for the purpose of proving the correct measure of damages to be applied in this ease. Appellants complain of question No. 14 submitted by the court, and especially that portion which instructs the jury as to the method by which to determine the amount of actual damages;, said question being as follows: “What sum of money, if paid now in cash, would compensate the plaintiff, W. B. Grice, for the actual damages, if any; suffered by him by reason of the wrongful levy of such attachment, if you have found that such levy was wrongful ? Answer in dollars. “You are instructed that, in,determining the amount of actual damages, if any, suffered by the plaintiff, Grice, the same will be the reasonable market value of all the property levied on by McAllister and Pitts at the time the same was levied on, which was September 21, 1922, in its then condition, together with 6 per cent, interest thereon from said date.” We sustain this assignment. The record shows that the cotton that was levied on by Sheriff Pitts was rent cotton; that three-fourths thereof belonged to Grice and one-fourth belonged to the landlords; and the record further shows that the attachment lien had been by the court foreclosed and the property sold and the proceeds derived therefrom applied'to the payment of the debt of appellee in part, and the remainder paid in cash to appellee. Appellants were entitled to have the jury deduct from the amount which they found to be the reasonable market value of the property' levied on,- the rents paid to the landlords, and the amount which appellee had received by payment of the judgment and costs in the county court, and the actual cash which he had received from the sale of said property. The measure of appellee’s actual damages, if any, occasioned by the writ of attachment being wrongfully levied was the value of his property that was attached which he did not thereafter recover, and the amount which he was required to expend to recover that portion which he thereafter obtained possession of, less such sums as had been paid to him from the proceeds of the sale under attachment, and tlie court should have so instructed the jury; it being understood, of course, that the proceeds from the sale of appellee’s exempt property could not be used to pay his debts. Appellants complain of the action, of the trial court in rendering judgment on the findings of the jury because of the conflict therein on the material issues submitted. We sustain this assignment. The court, under separate issues, asked the jury to determine the reasonable market value of the ungathlered cotton levied upon, the gray mare and mule which died while in the possession of the sheriff, the bale of picked cotton, and the five head of horses and mules that were sold by the sheriff. The jury answered each question separately, making a total value of $1,880 as the actual market value of said property so levied upon. In answer to question No. 14, which is above copied, the jury found that the actual damages suffered by appellee were $954.75. As is seen by the instructions given in connection with question 14, the court instructed the jury to fix the actual damages at the total value of the property levied on. The jury found said total values as $1,880, and then found that the actual damages were only $954.75. There is no way to reconcile the answers of the jury to said questions. One of the material issues to be determined in this litigation was the amount of actual damages, if any, appellee had suffered. Appellee contends that appellants have no ground for complaint by reason of the contradictory findings of the jury and the judgment of the court as entered, because the court credited the smallest amount found by the jury with the $262.50 in cash which appellee received from the county court, and rendered judgment for the least amount possible under any phase of the jury’s findings. We cannot agree with this contention. The jury are required to receive the law from *1003 the court. Payne v. Smith (Tex. Civ. App.) 266 S. W. 441. The court positively instructed the jury that in arriving at the amount of damages, if any, they should find the total value of all property levied on, and the jury utterly disregarded this positive instruction. The trial court entered judgment for appellee for actual damages in the sum of $692.25, stating in the judgment that said amount was arrived at hy taking the answer of the jury to question 14 and subtracting therefrom the $262.50 which the record shows ap-pellee had obtained in actual cash from the sale of' the property after the payment of the judgment of the county court. The trial court cannot disregard the findings of the jury on material issues and render judgment in disregard thereof, and, where the jury’s findings are contradictory on material issues, it is the duty of the trial court to set the findings aside and grant a new trial. Grissom v. Lopez (Tex. Civ. App.) 280 S. W. 613; Liverpool & London & Globe Ins. Co. v. Cabler (Tex. Civ. App.) 271 S. W. 441; Wichita Valley Ry. Co. v. Lechner (Tex. Com. App.) 276 S. W. 216; Schaff v. Wilson (Tex. Civ. App.) 269 S. W. 140. The other questions raised by appellants’ brief will not likely arise on another trial. For the errors above indicated, the judgment of the trial court is reversed, and the cause remanded.