Davey Tree Expert Co. v. Dyess

FLY, O. J. Appellant was the plaintiff in tbe county court, and sought to recover of appellee tbe sum of $397.66 for treating bis trees and removing tbe moss from them. Tbe cause was submitted to a jury on special issues, and upon tbe answers thereto judgment was rendered that appellant recover nothing by its suit. Tbe jury found that tbe employees of appellant, who treated tbe trees, were not experts in such work, that tbe work was not done in a “proper and expert workmanship manner,” and answered tbe question as to tbe reasonable value of the services performed, “Due nothing.” Tbe contract provided for expert treatment of appellee’s trees at tbe rate of $1.89 for each hour consumed in tbe treatment of •the trees, and tbe cost of tbe materials and express charges. Appellee agreed to pay within 19 days of receipt of invoice, and reserved tbe right to stop the! work at any time. Tbe employees of appellant were first to remove tbe moss from tbe trees and prune them thoroughly of all dead wood and excavate all decayed parts of tbe trees. Tbe trees were growing on. a lot owned by appellee in tbe city of Houston. There were nine trees. The employees worked 295 hours on tbe trees, 5 men working for 5% days, so as to cover tbe number of hours mentioned. . Appellee agreed to tbe number of hours and materials consumed as well as the express on-materials. Heisey, tbe foreman of tbe working squad, swore that the work was done “in a good and workmanlike manner” and that the material was used in tbe treatment of the trees. Appellee refused to pay for the work and material. There is not one word of proof fending to show that the work on tbe trees was not ex [776] pertly and skillfully done. The evidence showed that appellant did the work with its experts and appellee had agreed that appellant’s" “experts” treat his trees. He visited them at least twice while they were at work, and raised no objection to the kind of work they were performing. He did not attempt to prove that the work was not skillfully and properly performed, and there is no testimony to sustain the finding of the jury that the work was not done in an expert and proper manner. Appellee made no objection to the work and made no effort to show that it was not properly done. Only the foreman of the workers of appellant swore as to the quality of the work done, and he testified that it was expertly and well done. Not one word of testimony was offered to contradict that statement. The foreman may not have been an expert tree surgeon when first hired 8 years before, but the experience acquired through that number of years qualified him as an expert, and he it was who directed the work done for appellee, and he testified that the work was done in an expert and proper manner. • There is no testimony to sustain the verdict, and the judgment will be reversed, and the cause remanded.