Not being able to agree with my Associates in the disposition of this case, I hereby file the following dissenting opinion: *Page 1069
The record shows that appellees filed a claim in the commissioners' court of Coryell county, Tex., for damages to garden, crops, and land, alleged to be the result of an overflow caused by the change and maintenance of a culvert upon the appellant's road adjacent to appellees' property; that said claim was considered by the commissioners' court and rejected; and that no appeal was taken from this action of the court. Thereafter appellees filed suit in the county court, with same claim as a basis for such suit, and asked damages in the amount of $250. Thereafter the appellant herein filed its plea of res adjudicata, and its plea to the jurisdiction of the court; that said plea of res adjudicata and plea to the jurisdiction of the court were overruled by the county court. Appellant's first and second contentions will be presented together.
Appellant contends that the action of the commissioners' court in approving or rejecting a claim is a judicial act, and that by the action of the commissioners' court in rejecting said claim, same became res adjudicata, and that by the action of the court in overruling said plea, said claim constituted a judgment of the commissioners' court reviewable only in the district court, and therefore the county court has no jurisdiction to hear and determine this cause. This contention is true only in part. If a claim is one proper to be presented to the commissioners' court for allowance and it is so presented and allowed, then it has the force and effect of a judgment of a court of record and cannot be attacked collaterally; but if when such claim is presented for allowance it is refused and not allowed, then the party filing such claim may file suit thereon in any court having jurisdiction of the amount involved. For the commissioners' court to refuse to take any action on such claim is tantamount to a refusal of such claim. The same is true with reference to the second contention wherein appellant contends that for the commissioners' court to reject a claim constitutes a judicial act, and the judicial acts of the commissioners' court are reviewable only in the district court; and the county court has no jurisdiction to hear and determine such cause. The rule is well settled in this state that where the commissioners' court rejects a claim presented to it for audit and payment and said court refuses to allow same, said claim does not become res adjudicata, and neither does it become an adjudicated claim, but the holder of such claim is at liberty to file suit in any court having jurisdiction of the amount involved. There is no procedure of law authorizing an appeal from the commissioners' court to the district court. The authorities cited by appellant are not applicable. The authorities applicable to this case are as follows: Voss v. Harris County, 33 Tex. Civ. App. 249, 76 S.W. 600, 601; Angelina County v. Bond (Tex.Civ.App.) 16 S.W.2d 338; Jones County v. Moore (Tex.Civ.App.)4 S.W.2d 289; Palo Pinto County v. Gaines (Tex.Civ.App.) 168 S.W. 391; Holt v. Rockwall County, 27 Tex. Civ. App. 365, 65 S.W. 389; Revised Statutes 1925, art. 6730; Hill County v. Hamilton (Tex.Civ.App.)273 S.W. 292; Anderson v. Ashe, 99 Tex. 447, 90 S.W. 872; Williams v. Bowie County, 58 Tex. Civ. App. 116, 123 S.W. 199; Shelby County v. Caldwell (Tex.Civ.App.) 48 S.W.2d 761; Gaines County v. Hill (Tex.Civ.App.) 25 S.W.2d 197. The above two assignments should be overruled.
Under appellant's third assignment of error it is alleged that this cause was instituted to recover damages for alleged injury to garden and growing crops, as well as injury to land, and during the trial of this cause, in order to establish the measure of damages to said growing crops and garden, the appellee J. D. Fegette was allowed to testify, over the objection of appellant, that the reasonable value of the garden destroyed was $50 and the reasonable market value of the cotton destroyed was $20. Appellant contends that testimony as to the actual value of garden and growing crops is not such evidence as will establish the proper measure of damages, but contends that in a suit for destruction of growing crops the measure of damages should be ascertained by finding the total expense of cultivating, harvesting, and sale of said crops, and after said crops are harvested and sold, the net value, less the expense for so cultivating and gathering said crops, is the amount of the damages. This rule for measuring the damages was laid down in an opinion rendered by Chief Justice Gaines in the case of International G. N. Railway Co. v. Pape, 73 Tex. 501, 11 S.W. 526. However, Justice Gaines did not lay down this as an invariable rule. There are exceptions to it, and the rule for measuring damages should be applied which will come the nearest in arriving at the correct damages sustained. Appellant cites a number of authorities which, I think, are correct in a proper case; but as none of them apply to garden vegetables, or a gathered cotton crop, I do not think they are applicable to this case, so I do *Page 1070 not cite them. The only damage sustained, as found by the jury, was $50, the value of the garden destroyed, and the actual value of the cotton in the sum of $20. The record shows the garden was a small tract of land, probably not more than one-fourth an acre, and while the evidence does not show what was grown in the garden, some were doubtless various kinds of vegetables which mature in the spring and early summer. The record further shows that these vegetables were not for market, but were for family use only. This being true, it is evident the same rule for the measure of damages for the destruction of the garden would not, and should not, be applied as would be applied for the loss of a crop. There was practically no damage to the land. I think the measure of damages contended for by appellees, that is, the actual value of growing vegetables and the $20 for the cotton, was the correct measure of the damages. The actual damage in dollars and cents was the proper measure of damages; reasonable market value has no application.
Appellant contends that it was misconduct on the part of the jury to enter into an agreement whereby each juror would put down the amount of damage he thought the appellees should receive, then divide the total by the number of jurors, and allow a quotient so reached to constitute their verdict. The general rule with reference to quotient verdicts is stated in Weatherford, M. W. N.W. Railway Co. v. Thomas (Tex.Civ.App.)175 S.W. 822; 52 A.L.R. 45; Chicago, R. I. G. R. Co. v. Swann,60 Tex. Civ. App. 427, 127 S.W. 1164 (writ refused); Eastern Ry. Co. v. Montgomery (Tex.Civ.App.) 139 S.W. 885; Gulf, C. S. F. Ry. Co. v. Blue, 46 Tex. Civ. App. 239, 102 S.W. 128; Missouri, K. T. R. Co. v. Hawkins, 50 Tex. Civ. App. 128, 109 S.W. 221, 222 (writ denied); Medford v. Hendricks (Tex.Civ.App.) 38 S.W.2d 413; Estep v. Bratton (Tex.Civ.App.) 24 S.W.2d 465, 469, pars. 5 and 6; Sandifer v. Ft. Worth Nat. Bank (Tex.Civ.App.) 8 S.W.2d 512; Hatt v. Walker (Tex.Civ.App.)33 S.W.2d 489; James A. Dick Co. v. Yanez (Tex.Civ.App.) 55 S.W.2d 600; Bradley v. Texas Pacific R. Co. (Tex.Com.App.) 1 S.W.2d 861, 862; Texas Employers' Ins. Ass'n v. Chocolate Shop, Inc. (Tex.Com.App.)44 S.W.2d 989; Houston T. C. R. Co. v. Gray, 105 Tex. 42,143 S.W. 606. There is no evidence in the record that the jurors agreed together in advance to be bound by the quotient of the added amounts. They each testified that they agreed upon the amount thus arrived at after making some deductions. The trial court went fully into this matter and I think fairly and impartially heard each Juror's version of the matter. Unless the record shows an abuse of the discretion vested in the trial judge, his action in the matter will not be reviewed on appeal. This is well settled and is fully discussed in many of the authorities cited here and in 52 A.L.R. 45. The appellant's contention here made should be overruled.
*Page 1071In my opinion, the judgment of the trial court should be affirmed.