Phillips Petroleum Co. v. Arrington

318 S.W.2d 694, 1958 Tex. App. LEXIS 1590
CourtCourt of Appeals of Texas
DecidedNovember 24, 1958
DocketNo. 6814
StatusPublished
Cited by2 cases

This text of 318 S.W.2d 694 (Phillips Petroleum Co. v. Arrington) 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
Phillips Petroleum Co. v. Arrington, 318 S.W.2d 694, 1958 Tex. App. LEXIS 1590 (Tex. Ct. App. 1958).

Opinion

CHAPMAN, Justice.

This is an action for damages for destruction of a 1956 growing wheat crop by blowing dirt, brought by appellee, J. M. Arrington against appellant, Phillips Petroleum Company, allegedly caused by the negligent failure of appellant to chisel alongside its pipeline running across the place being farmed during that year by appellee in wheat. The case was tried to the jury, the issues of negligence and proximate cause were answered against appellant, damages were found by the jury to be $2,972.50 and the court rendered judgment against appellant for that amount together with costs, and interest from the date of judgment.

The case is before us upon complaints of error of the trial court in overruling appellant’s motion for instructed ver.dict, motion non obstante veredicto and motion for new trial because there were neither pleadings nor proof of a legal measure of damages in that appellee failed to plead or prove the cost of cultivating, caring for, harvesting and transporting to market the anticipated wheat. The pleadings relied on for the measure of damages were as follows : “If the defendant had not left the area adjacent to the pipeline in a loose condition, it would not have blown and caused the remainder of your plaintiff’s field to be blown out and your plaintiff would have cut and harvested an additional 1,450 bushels of wheat, of the reasonable ■cash market value of $2,972.50.” That amount was then prayed for in the prayer [696]*696for judgment. Proof was offered of sufficient probative force by which the jury was justified in figuring the number of bushels of wheat at 1,450 appellee would have made but for the loss from blowing found to have been caused by appellant’s negligence. As further proof on the measure of damages appellee testified on direct examination as follows:

“Q. * * * do you know what the market value of wheat was at cultivating time there?
“A. I think it was around $2.05. That was the government loan; I couldn’t say what the market on wheat was.”

Before closing his case appellee was recalled and testified:

“Q. Now, here is a technical matter I want to clear up with you. Do you know what the market value of wheat was out there in that area?
“A. I think I do.
“Q. How much was it a bushel, John?
“A. $2.05.”

The above is all the testimony we find in the record concerning the measure of damages by which appellee sought to recover except a conversation between ap-pellee and Clay Carrithers, Manager of the Amarillo Division of the Tax and Claim Department of Phillips Petroleum Company, which included the county in which the wheat crop in controversy was located. Thus, we may say from the record before us that appellee relied for recovery on a loss of 1,450 bushels of wheat on 155 acres, because he tendered, in the alternative, a remittitur of $387.50, which would have been harvesting costs at $2.50 an acre on 155 acres. There is not even a suggestion in the record of harvesting costs except on the basis of $2.50 an acre.

The record shows there was some controversy as to the number of acres of wheat appellee claimed was killed by the blowing dirt. Mr. Carrithers testified in effect that he made a memo of appellee’s claims when he came to his office and that he was then claiming a loss of 125 acres due to their pipeline construction. This testimony was offered for the purpose of impeachment when the evidence developed that appellee was claiming 155 acres destroyed. ■ Then on cross-examination ap-pellee asked Mr. Carrithers

“Q. Okay. He stated that the harvest of two-fifty an acre totaling $312.50 should be subtracted * * *. Right?”
“A. Right.”

It is from this testimony just quoted that appellee contends he established the cost of harvesting in the proof of his measure of damages for recovery. To this contention we find ourselves unable to agree.

In 31 C.J.S. Evidence § 216, p. 948, the following textual statement is made that we believe applicable to the situation here under consideration: “Generally a party cannot make evidence for himself by his own declarations, and it is a well established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in evidence in his favor. Such declarations are not rendered admissible by the mere fact that they were made in the presence of, or in a conversation or correspondence with, the opposing party or his agent, in the absence of assent to their truth by the opposing party * *

Of practically the same tenor is the following rule stated in Vol. 1, McCormick and Ray’s Texas Law of Evidence, Sec. 786, at p. 568:

“The declarations of a party to the suit may always be proved Against him by his adversary, under the rule as to admissions which is thus an exception to the hearsay rule. If evidence of the party’s declaration is offered to prove the facts declared by the party-declar-[697]*697ant in his own favor, the evidence is hearsay and the admissions-exception is of course inapplicable. Unless the declaration comes within some other exception to the hearsay rule, the all-sufficient objection is the general hearsay principle. Rather unfortunately, however, the practice has arisen of objecting to the evidence as a “self-serving declaration.”'

We believe the above textual statements are supported by the following authority: Thomasson v. Davis, Tex.Civ.App., 74 S.W.2d 557; Boone v. Moore, Tex.Civ.App., 246 S.W. 685; Commercial Standard Ins. Co. v. Billings, Tex.Civ.App., 114 S.W.2d 709; Firemen’s Ins. Co. of Newark, N. J., v. Universal Credit Co., Tex.Civ.App., 85 S.W.2d 1061; Cunningham v. Deist, Tex. Civ.App., 286 S.W.2d 192 (writ refused); Long v. Knox, Tex., 291 S.W.2d 292; Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631.

Even closer in point to the facts of the instant case is the authority announced by a Connecticut appellate court in Ives v. Bartholomew, 9 Conn. 309, 312 wherein it said:

“I take the rule of law to be, that declarations of a party against his interest are always admissible in evidence. They may weigh little, or they may furnish strong, nay irresistible proof. Declarations in one’s favowr, strictly speaking, are not admissible at all. But where a witness is called to relate the conversation of a party, all which was said at the time, if required, must be testified. This rule rests on solid principle. A person is always presumed to speak favourably for himself, and never to allege any thing against his interest, unless it be true. For the same reason, where a person has stated a fact altogether in his favowr, a witness never can be permitted to testify to that declaration: in other words, a party cannot make testimony for himself.”

Accordingly, we believe very strongly that the testimony was improper for proving a necessary substantive fact, to-wit; a portion of the proper measure of damages.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Phillips Petroleum Company v. Terrel
404 S.W.2d 927 (Court of Appeals of Texas, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
318 S.W.2d 694, 1958 Tex. App. LEXIS 1590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-petroleum-co-v-arrington-texapp-1958.