Beaumont Gaslight Co. v. Rutherford

Court of Appeals of Texas

Beaumont Gaslight Co. v. Rutherford

223 S.W. 245, 1920 Tex. App. LEXIS 718

CourtCourt of Appeals of Texas

DecidedJune 15, 1920

DocketNo. 556.

StatusPublished

Cited by3 cases

This text of 223 S.W. 245 (Beaumont Gaslight Co. v. Rutherford) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Beaumont Gaslight Co. v. Rutherford, 223 S.W. 245, 1920 Tex. App. LEXIS 718 (Tex. Ct. App. 1920).

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Opinion

WALKER, J.

This was a suit By appellee for damages occasioned by the act of appellant in attempting to lay a gas main across her yard. Her daughter testified as to the character of vegetables growing in the garden, but did not say how large the garden was, how much of it was in cultivation, how much was planted in different hinds of vegetables, nor did she attempt to detail the extent of the injury done the vegetables. She said:

“I estimate the damage done to the garden at $300. Potatoes this year were selling for $2.50 per bushel. We have been raising a garden there for a number of years, and for the last two or three years we have sold vegetables out of that garden for sums amounting to $200 a year.”

According to the testimony offered by appellant, the damage done to the vegetables was limited to two strawberry plants, and such damage as may have been occasioned by a little dirt rolling against the vegetables growing adjacent to the trench. The trench was about 40 feet long, 2 feet deep, and 18 inches wide. The testimony offered by ap-pellee was not sufficient to sustain the judgment for $100 and under the rule announced in Railway Company v. Joachimi, 58 Tex. 455, Railway Co. v. Pape, 73 Tex. 503, 11 S. W. 526, Railway Co. v. McGowan, 73 Tex. 355, 11 S. W. 336, Suderman-Dolson v. Rodgers, 47 Tex. Civ. App. 67, 104 S. W. 193, Railway Co. v. Wright, 195 S. W. 605, and Portland Cement Co. v. Kezer, 174 S. W. 664, was subject to the objection that it was a mere estimate by the witness, without a statement of facts upon which such estimate was based.

The cause is reversed and remanded for a new trial.

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WALKER, J.

This was a suit By appellee for damages occasioned by the act of appellant in attempting to lay a gas main across her yard. Her daughter testified as to the character of vegetables growing in the garden, but did not say how large the garden was, how much of it was in cultivation, how much was planted in different hinds of vegetables, nor did she attempt to detail the extent of the injury done the vegetables. She said:

“I estimate the damage done to the garden at $300. Potatoes this year were selling for $2.50 per bushel. We have been raising a garden there for a number of years, and for the last two or three years we have sold vegetables out of that garden for sums amounting to $200 a year.”

According to the testimony offered by appellant, the damage done to the vegetables was limited to two strawberry plants, and such damage as may have been occasioned by a little dirt rolling against the vegetables growing adjacent to the trench. The trench was about 40 feet long, 2 feet deep, and 18 inches wide. The testimony offered by ap-pellee was not sufficient to sustain the judgment for $100 and under the rule announced in Railway Company v. Joachimi, 58 Tex. 455, Railway Co. v. Pape, 73 Tex. 503, 11 S. W. 526, Railway Co. v. McGowan, 73 Tex. 355, 11 S. W. 336, Suderman-Dolson v. Rodgers, 47 Tex. Civ. App. 67, 104 S. W. 193, Railway Co. v. Wright, 195 S. W. 605, and Portland Cement Co. v. Kezer, 174 S. W. 664, was subject to the objection that it was a mere estimate by the witness, without a statement of facts upon which such estimate was based.

The cause is reversed and remanded for a new trial.

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223 S.W. 245, 1920 Tex. App. LEXIS 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beaumont-gaslight-co-v-rutherford-texapp-1920.

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