Engineered Plastics, Inc. v. Woolbright

533 S.W.2d 906, 1976 Tex. App. LEXIS 2501
CourtCourt of Appeals of Texas
DecidedFebruary 19, 1976
Docket910
StatusPublished
Cited by10 cases

This text of 533 S.W.2d 906 (Engineered Plastics, Inc. v. Woolbright) 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.

Bluebook
Engineered Plastics, Inc. v. Woolbright, 533 S.W.2d 906, 1976 Tex. App. LEXIS 2501 (Tex. Ct. App. 1976).

Opinion

DUNAGAN, Chief Justice.

This is a suit for conversion. This suit was instituted by appellees, Ray M. Wool-bright and wife (plaintiffs in the trial be-loyr), against the appellant, Engineered Plastics, Inc., for the conversion of a swimming pool heater and diving board in a wilful, malicious and wanton manner. The appellees sought damages for such conversion in the sum of $679.80, exemplary damages in the sum of $3,720.20 and the sum of $500 for damages allegedly caused to the sprinkler system by the appellant’s installation thereof. The total damages sought were $4,900. Appellant answered by generally denying the conversion and damages to the sprinkler system and by filing a cross action against appellees alleging an indebtedness due and owing by appellees to appellant for the installation of a gas line to the pool heater.

Trial was before the court without the aid of a jury. Judgment was rendered against the appellant and in favor of appel-lees for $650 actual damages and $500 exemplary damages. From this judgment appellant has appealed. The judgment denied appellant recovery on its cross action, from which there was no appeal.

The trial court made and filed its findings of fact and conclusions of law. The trial court found, among other things, that (a) appellees entered into a contract with appellant for the installation of a swimming pool on appellees’ residential property with attachments and equipment which included a pool heater and diving board for a stated consideration; (b) after the installation of said swimming pool with attachments and equipment, the appellees performed their obligation under the contract by paying appellant the stated consideration therefor and became title owners to all improvements so placed on their property; (c) thereafter appellant demanded of appellees monies over and above the original contract price for installation of gas lines to the pool heater; (d) appellees denied further liability to appellant and appellant was advised by letter to direct all communications to *908 appellees’ attorneys; (e) upon receipt of said letter appellant directed its employees to go upon appellees’ property and disconnect the pool heater and diving board and take said items, all without the consent or permission of appellees; (f) that written demand was made upon appellant to immediately reinstall the items taken, which demand was refused; (g) that the diving board and pool heater are in appellant’s custody and dominion; (h) that appellant’s action “in taking the pool heater and diving board without consent, and its refusal to return the same after proper demand was made, constitute conversion”; (i) the market value of the items so converted at the place and time of conversion was $650; (j) the conversion of said items was “wilful, malicious and in wanton disregard” of ap-pellees’ rights; and (k) “as a result of said wilful, malicious and wanton conduct” ap-pellees “are entitled to recover $500 in exemplary damages from” appellant.

The court’s conclusions of law were that the conversion was in a wanton, wilful and malicious manner, and the appellees were entitled to recover the sum of $650 actual damages and $500 punitive damages.

Appellant brings forward three points of error. In the first two points appellant asserts that the court erred in awarding actual damages in the amount of $650 because there was no evidence or insufficient evidence of the market value of the items at the time and place of conversion to support the award of such damages.

In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. Waters v. Waters, 498 S.W.2d 236, 240 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.). We will examine the entire record in passing upon the insufficiency of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellee, Ray M. Woolbright, testified that the replacement cost of the swimming pool heater and diving board to the best of his recollection was $670; that he replaced the items about one week after the conversion. Mr. Woolbright was the only witness for the appellees to give testimony concerning the replacement cost of the converted items. Witness Ray Woolbright was not shown to be acquainted with the market value of the property at the place and time of conversion. No effort was made to so qualify him.

The law is well established that in cases of conversion of property, the establishment of the market value of the property at the place and on the day of conversion is essential to a recovery. A witness called to testify as to such value, must, as a prerequisite to the admission of his testimony, show that he was acquainted with the market value of the property at such time and place. Ada Oil Company v. Logan, 447 S.W.2d 205, 210 (Tex.Civ.App.-Houston, 14th Dist., 1969, n. w. h.); Callihan v. Fort Worth Well Machinery & Supply Company, 88 S.W.2d 1057, 1059-60 (Tex.Civ.App.-Fort Worth 1935, writ dism’d); Marshall v. White, 41 S.W.2d 87 (Tex.Civ.App.-Austin 1931, writ dism’d); Waldrop v. Goltzman, 202 S.W. 335 (Tex.Civ.App.-Dallas 1918, n. w. h.); Lincoln v. Packard, 25 Tex.Civ.App. 22, 60 S.W. 682 (1900 n. w. h.); Reef v. Hamblen, 47 S.W.2d 375 (Tex.Civ.App.-Dallas 1932, writ ref’d); 14 Tex.Jur.2d, Conversion, secs. 24 and 84.

We find no evidence in the record as to the market value of the pool heater or diving board. Mr. Woolbright testified only as to the price he paid for a heater and diving board to replace the items converted. Appellees made no attempt to prove the market value of the items here in question at the time of conversion. As a matter of fact, appellees did not attempt to prove market value of the said items as of any time. Moreover, Mr. Woolbright did not know the exact purchase price of the pool heater and diving board. The bill for the purchase of these two items included the purchase of another item not related to the *909 replacement item. He was not sure of the price of the unrelated item. He said he thought he paid $670 for the two replacement items. This amounts to approximation. Ada Oil Company v. Logan, supra.

Appellees contend that the testimony of Mr. Willard B. Posson, President of Engineered Plastics, Inc., appellant, was a “judicial admission” that the price of the heater installed would be approximately $600. Mr. Posson gave no testimony remotely related to the diving board. It was not established whether the price of $600 placed on the pool heater by Mr. Posson was the current price or at time of the conversion. He gave the following testimony:

“Q. And, then, you sell it to the client installed?
“A. Yes.

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533 S.W.2d 906, 1976 Tex. App. LEXIS 2501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engineered-plastics-inc-v-woolbright-texapp-1976.