* Writ of error granted. *Page 632 This suit was originally instituted by M. M. Coffman against appellant on January 31, 1923, to recover damages which he claimed to have suffered by reason of his residence located on his farm being burned in July, 1921. In September, 1923, M. M. Coffman was adjudged of unsound mind, and R. C. Coffman, his son, was appointed guardian of his person and estate. In November, 1925, M. M. Coffman died, and Deck Coffman was appointed executor of his estate, and, as such executor, substituted himself as plaintiff in this cause. M. M. Coffman and wife owned 700 acres of land near Crawford adjoining appellant's right of way. Mrs. M. M. Coffman died prior to the time of the fire in controversy, and M. M. Coffman was at said time 81 years of age. R. C. Coffman, as guardian, filed an amended petition, in which he claimed $4,000 damages, being the alleged value of the house and furniture destroyed, and, in addition thereto sought to recover $100 per month for the loss of the value of its use and occupancy. After the death of M. M. Coffman, appellee, as executor of his estate, amended said petition, and claimed as damages one-half of the value of the house and furniture destroyed, with 6 per cent. interest on the total value of the house from the time of the fire until the death of M. M. Coffman in November, 1925, and 6 per cent. interest on the half belonging to M. M. Coffman until the time of trial. He claimed the value of the use of the house — daring M. M. Coffman's lifetime was 6 per cent. interest on the total value of the house. The heirs of M. M. Coffman joined in the amended pleading filed by the executor and claimed damages to the extent of one-half the value of the house destroyed, and 6 per cent. interest thereon from the date of the death of their father. The trial court instructed the jury to return a verdict for appellant against the heirs on the ground that their claim was barred by the statute of limitation, and there is no appeal from this portion of the judgment.
The cause was submitted to a jury on special issues. The jury found that the reasonable value of the house at the time of the fire was $2,500 and the reasonable value of the furniture at said time was $300, and found the amount of interest on each of said items from the time of the fire up to the date of trial. The trial court entered judgment for appellee for $1,400, being half of the total value of the house and furniture destroyed and 6 per cent. interest thereon until the date of M. M. Coffman's death in November, 1925, and 6 per cent. interest on one-half thereof from his death to the date of trial.
To make a proper disposition of this cause, it is necessary to determine what was the measure of damages to which M. M. Coffman was entitled by reason of the house occupied by him as a homestead being burned. As we construe the law, at the time Mrs. Coffman died, her husband, M. M. Coffman, *Page 633 had the right to the use and occupancy and was entitled to the rents and revenues during his occupancy of the homestead, being the property on which the residence in controversy was located. He owned an undivided one-half interest in the property, and his children owned the other one-half interest, subject to his right to occupy and enjoy same during his lifetime. M. M. Coffman therefore had a twofold interest in the property — one, the right to use, occupy, and enjoy same, and the other the right to the undivided half interest. He had the power to abandon or renounce his right to occupancy and have the property divided in kind, or, if he abandoned same as his home, his children would have the right to have the property partitioned. The measure of damages for the destruction of the property was unquestionably the value at the time same was destroyed. The method by which this value should be ascertained is a more difficult question. The measure of damage for having been deprived of the use and occupancy of the house should be measured by the value of the use of the property destroyed during the time that M. M. Coffman was deprived thereof. In Lucas v. Lucas, 104 Tex. 636,143 S.W. 1153, our Supreme Court held that, where the homestead occupied by the surviving widow had been by condemnation proceedings taken away from her for city purposes, the widow was entitled to have said funds derived therefrom reinvested in a home for her to occupy during the remainder of her life. In that case the survivor had no interest in the property, except her life estate. Not only is the survivor entitled to the use and occupancy, but he is also entitled, while he is occupying the premises, to the rents and revenues derived therefrom. Ruble v. Ruble, (Tex.Civ.App.) 264 S.W. 1018, and authorities there cited. The rule seems to be well established that where a party is deprived of the use thereof to him for the length of time he was deprived thereof. 17 C.J. 785; Powell v. Hill (Tex.Civ.App.) 152 S.W. 1125; Galveston-Houston Electric Ry. Co. v. English (Tex.Civ.App.) 178 S.W. 666; Moore v. King,4 Tex. Civ. App. 397, 23 S.W. 484; Railey v. Hopkins,50 Tex. Civ. App. 600, 110 S.W. 779. We think, unquestionably, that M. M. Coffman's measure of damage for having been deprived of the use and occupancy of the residence was the value of its use to him. The trial court's judgment with reference to measure of damages accruing to M. M. Coffman for having been deprived of the use of the property was arbitrarily fixed at 6 per cent. interest on the total value of the property destroyed as found by the jury. Appellant objected to this measure of damages being applied, and we think said objection should have been sustained. The rule applied by the court, in some instances, might be just and a fair compensation. In others it might be a very unjust standard for the measurement of damage. If the residence was worth $100,000, the recovery would be equivalent to $6,000 per year. If, on the other hand, it was worth only $1,000, the recovery would be only $60 per year. We think the better rule is the value of the use of the property to the party shows M. M. Coffman was 81 years of age at the time of the fire, and that 2 years later he was adjudged of unsound mind, and, at the time of his death in 1925, he was 85 years of age. The use of the property to him might have been much more valuable or much less valuable than to persons under different conditions and circumstances.
Appellant contends that the trial court committed error in allowing the jury to fix, as the measure of damages for the destruction of the house the reasonable value thereof at the time of the fire. It contends that the true measure of damages for the total destruction of a house is the difference in the market value of the entire premises with the house thereon immediately before the fire and without the house immediately after the fire. We overrule appellant's contention. The record shows that the house which was destroyed was located on a 700-acre farm. While our courts hold that a proper rule by which to establish the damage for the burning of a house is to ascertain the value of the premises immediately before and immediately after the fire, still they hold that this is not the exclusive method of establishing the value of the house destroyed. Taylor v. Gossett (Tex.Civ.App.) 269 S.W. 230 (error dismissed); M., K. T. Ry. Co. v. Mitchell (Tex.Civ.App.) 166 S.W. 126 (error refused); Independent Shope Brick Co. v. Dugger (Tex.Civ.App.)281 S.W. 600.
Appellant complains of the action of the trial court in permitting the court stenographer to read in evidence the question and answer testimony of R. C. Coffman, given on a former trial. It appears that at a former trial the witness R. C. Coffman was present and testified, and his testimony was taken down by the official court reporter. At the time of the trial from which this appeal is prosecuted, R. C. Coffman was dead. The objection of appellant goes to said testimony as a whole, on the theory that the question and answer testimony of a witness is not admissible, but only the narrative statement thereof can be reproduced. Appellant does not contend that the testimony had not been accurately transcribed, or that the witness did not testify as shown by said stenographic report. We overrule appellant's contention. We think no better reproduction of the testimony of a witness could be had than by having the official court reporter transcribe same in the exact language of the witness. Cooper v. Ford, 29 Tex. Civ. App. 253, 69 S.W. 487; Smith v. State, 60 Tax.Cr.R. 293, *Page 634 131 S.W. 1081. As to whether all of said testimony was admissible is not necessary for us to, and we do not, determine, since the objection went to the testimony as a whole.
Appellant contends that the finding of the jury that the house was of the reasonable value of $3,000 at the time of its destruction is so overwhelmingly against the weight of the testimony that said finding should not be permitted to stand; and further contends that the witness R. C. Coffman was not qualified to testify as to the value thereof. The only testimony offered by appellee with reference to the value of the house was by the witness R. C. Coffman, who was a party to the suit. He testified that he was a carpenter, blacksmith, and farmer and had been for 30 or more years; that he had built some houses and figured on some contracts to build; that he had never figured on a completed job, including papering and painting. He testified that the house which was burned was a boxed house, weatherboarded and ceiled; that it had two front rooms 16 by 16, with hall between, and two shed rooms attached 8 by 16, and then an ell built on behind, 14 by 28, divided into two rooms 14 by 14; that one of the 14 by 14 rooms was used for a kitchen and one for a smokehouse, and that there was a gallery along the front of the house 8 feet wide and 40 feet long. He testified that the sills and floor joists were made of hewn logs, and that the rafters were made of cedar poles; that part of the house had been built more than 50 years, and all of it had been there for from 35 to 40 years; that the house had been refloored about 12 years before the fire, and repainted about 6 years before; that he thought the reasonable price for the house at the time of the fire was $3,000. The only other testimony with reference to the value of the house was that by Mr. Cantrell, a contractor, who testified that he was familiar with the cost of building material and labor for building houses, and that a house of the size and dimensions as that burned could have been rebuilt new at the time of the fire, or at any time since, for a price not exceeding $1,927.84, and he testified that he as a contractor would build said house new for said price. There was no testimony that in any way contradicted or questioned that of Mr. Cantrell that a new house of the same dimensions could be built for $1,927.84.
The cardinal rule for the determination of damages inflicted upon one party by another is that of compensation. In some instances, the value of a house may be much less than its cost, and, when this is the condition, the parties should not be entitled to the cost of rebuilding. Pacific Express Co. v. Lasker Real-Estate Ass'n, 81 Tex. 81, 16 S.W. 792; T. N. O. Ry. Co. v. Jeff Chaison Town-Site Co. (Tex.Civ.App.)290 S.W. 892; Id. (Tex.Com.App.) 298 S.W. 399; Chicago, R. I. G. Ry. Co. v. Zumwalt (Tex.Com.App.) 239 S.W. 912. In some instances the house might be worth more than the original cost. There is, however no rule for ascertaining the damage occasioned by having a house destroyed which allows a party to recover more than it would actually cost to replace the property. The house in controversy, by reason of its age, and the fact that it was built in the pioneer days of hewn timbers, may, to the family, have a sentimental or fanciful value, and this may have unconsciously influenced the witness R. C. Coffman, who was a party at interest, and who had spent his childhood in the house, and caused him to fix the value of the house at more than it would actually cost to replace it. Since this cause must necessarily be reversed for other reasons, we do not think it is necessary to determine whether this issue is so against the weight of the evidence as to require a reversal. The parties will have opportunity to strengthen the testimony with reference to the value of the house on another trial.
Appellant contends that the finding of the jury that the fire which destroyed the house in controversy was caused by the escape of sparks or fire from appellant's engine is so much against the weight of the testimony that same should not be permitted to stand. We sustain this assignment. The house that burned was located not far from the southwest corner of a tract of Johnson grass which surrounded the house, and which had been some 30 days before mowed for the purpose of being burned. The house was about 100 yards from the railroad track. The fire occurred in the afternoon of July 19, 1921. The nearest point to which the fire burned on appellant's right of way was almost opposite the house, and, if the fire started at that point, it was not more than 100 yards to where the house was standing, and, from the testimony, the wind was blowing from said point almost directly toward the house. The train dispatchers at Temple and Cleburne, being the nearest division points to the south and north of said railway from where the fire occurred, and several of the agents between said two points were placed on the stand, with the records which they kept at said time; and each of said witnesses testified that no train passed appellee's place on the afternoon when the house was burned prior to the time of the fire. The only witnesses who testified that they saw a train on appellant's road on the afternoon of the fire were Letha Alexander, Mrs. E. R. Alexander, and A. D. Black. Letha Alexander at the time of the fire was a girl 13 years of age. She was chopping cotton on the opposite side of the railway an indefinite distance therefrom and from a quarter to a half a mile from the scene of the fire. She testified she saw a short freight train going north, and a short time thereafter she noticed a fire on the right of way down toward the Coffman house; that in about 30 minutes she saw the house on fire; that she saw some section men on the *Page 635 railroad track; that, after she saw the house was on fire, she went home and reported it to her father and mother, but neither of them went to the fire.
Mrs. Alexander testified that on the date of the fire she lived on the Costley farm, adjoining the Coffman farm, on the west side of the railway track; that, after lunch that day, she went to Crawford for some groceries; that, when she returned home, her telephone bell was ringing, and she was told by one of the neighbors that Mr. Coffman's house was afire; that, when she was coming home from Crawford, she saw a train going north; that she had her three children with her in the buggy; that, after the train went north, she went to the haypress, and stayed a few minutes, and then went home, and then went to the fire. This testimony was given on the last trial, which was had in March, 1927. She testified that she had been a witness in each of the other trials in former years, and had never before testified to having seen a train on the railway track the day of the fire; her explanation thereof being that she had not been asked relative thereto.
A. D. Black, a kinsman of the Coffmans, testified that he lived at Patton, 3 miles south of Valley Mills, and about 5 miles from Mr. Coffman's, in 1921, at the time of the fire; that about 2 o'clock in the afternoon that day he went on horseback to his brother's house, who lived on the Coffman farm; that in leaving his home he had to cross the railroad track, and at that time he saw a freight train going north; that, when he got down the road about a mile or a mile and a half, he saw heavy smoke on the Coffman farm; that he was about two and a half or three miles from the fire when he first discovered the smoke; that it took him about an hour to go to his brother's house; that he had been at his brother's house about 20 or 30 minutes when he first noticed the house was on fire; that he and his brother then went over to the fire. He testified that he had lived in that community all these years, was a kinsman of the Coffmans, and had never testified in the case before; that he did not tell any one about having seen the train before the first trial; that before the second trial he did tell Mr. Coffman, but that he was not used as a witness in any of the former trials.
Mr. Sterling, the only other witness who testified to having seen the fire prior to the time the house was burning, did not claim that he saw any train. Be testified that he was hauling hay on the farm directly opposite the Coffman house and on the west side of the track, the Coffman house being on the east side of the track; that he first noticed the fire on the dump on the right of way; that, after he saw the fire, he finished loading a load of hay, and carried it about a mile to the barn and came back for another load, when he discovered the house was afire, and he and his helper then went over to the fire.
Mr. Morgan, who lived about 300 yards from the Coffman house, testified that he had, for Mr. Coffman, mowed the Johnson grass on some 15 or 20 acres around the house about 30 days before the fire, and that Mr. Coffman told him he was going to have his son Bob burn it off. The theory of appellee is that the fire originated almost opposite the Coffman house on appellant's right of way at a point lcated about 50 to 100 yards from the house. The witnesses Bob Coffman, Hugh Anderson, and Bob Petrie all testified that, after the house had burned down, they went to the railway right of way to ascertain, if they could, where the fire started; that at that time there was a little fire burning against the wind on the right of way, and the main fire had gone away to the north, across the farm, and was still burning on the north end of the field. There was no contention on the part of any of the witnesses that the fire could have been started by the railway, unless it started almost opposite the house. If the fire did originate there, it could not have taken it but a few minutes, in the dry mowed grass, to have burned to the house, and it would not have been possible for it to have taken as long a time as fixed by the witnesses for it to have reached the house and set same afire. It does not sound reasonable that the fire would have gone out at every place except the small patch that was burning against the wind at the place where it was nearest the railroad track and far over on the north side, if the fire had originated at the place it was still found to be burning on the right of way. There were two or three other witnesses who testified that they had at different times in the year 1921 seen fires start shortly after one of appellant's trains had passed. After the Coffman house was rebuilt, Mrs. R. E. Alexander and family moved onto the Coffman place. Each of the witnesses asked with reference thereto testified that he had never at any time seen any sparks coming from one of appellant's engines, and had never seen any fire emitted therefrom. It was an undisputed fact that the engines used by appellant on its railway at the time of the fire were equipped for and were burning oil for fuel, and the jury found that same were equipped with the most modern appliances to prevent the escape of fire, and that appellant had used ordinary care to keep same in repair. A number of expert witnesses testified; and they as well as the railroad employees testified that an oil-burning engine would not and could not emit sufficient sparks to cause a fire. The evidence shows that just a small portion of the grass on the right of way of appellant was burned; that there were tall green bloodweeds and green Johnson grass on the right of way as well as some dead grass in the bloodweeds, The larger portion of the *Page 636 burned territory was north of the house. When the first parties reached the burning house, they found old man Coffman there with a sack, with which he had been fighting the fire. No statement was obtained from him. He at that time was past 80 years of age, and at the time of the trial was dead.
Under facts much stronger than those surrounding this case, our courts have held that the evidence was not sufficient to support a finding by the jury that a fire was caused by sparks from an engine, and there are numerous cases reported that have been reversed by appellate courts because of the insufficiency of the testimony. Talley v. G., C. S. F. Ry. Co. (Tex.Civ.App.) 176 S.W. 65; G., C. S. F. Ry. Co. v. Meentzen Bros., 52 Tex. Civ. App. 416, 113 S.W. 1000; I. G. N. Ry. Co. v. Morgan, 28 Tex. Civ. App. 348, 67 S.W. 425; St. L. S.W. Ry. Co. v. McIntosh Carlisle, 59 Tex. Civ. App. 570, 126 S.W. 692; St. L. S.W. Ry. Co. v. Adcock (Tex.Civ.App.) 269 S.W. 144. Where the finding of the jury is against the overwhelming weight of the testimony to such an extent that its finding is manifestly wrong, it is the duty of the appellate court to set the finding aside. Good v. Good (Tex.Civ.App.)293 S.W. 621; Schimmel v. Meyer (Tex.Civ.App.) 272 S.W. 639; Kirby Lumber Co. v. R. L. Lumber Co. (Tex.Civ.App.) 279 S.W. 546; Roman v. St. L. S.W. Ry. Co. (Tex.Civ.App.) 160 S.W. 431. In our opinion, the finding of the jury that sparks or fire from appellant's engine caused the fire is so against the overwhelming weight of the testimony that same should not be permitted to stand.
There being no complaint of the judgment of the trial court instructing a verdict against all of the heirs of Mrs. Coffman, who joined in the suit to recover their undivided one-half interest of the value of the property destroyed, the judgment as to them is affirmed. The judgment of the trial court awarding Deck Coffman, administrator, recovery is reversed and remanded.