We adopt the statement of appellant, with a correction in a date, suggested by appellee:
"Appellee, Paul Gallas, instituted this suit against appellant, W. T. Montgomery, in the district court for the Forty-Fifth judicial district on June 10, 1919, by petition alleging, in substance, that on the 1st day of June, 1917, he, Gallas, owned and was entitled to the possession of certain mules, wagons, harness, tents, and a certain water wagon, alleging a value for each of said items; that on said date said personal property was in the actual possession of said Montgomery in the state of Kentucky, and that said Montgomery had continuously since said date withheld the possession of said property from said Gallas, but had used the same for his, the said Montgomery's, own use and benefit, and was still holding and using the same.
"That the value of the use of said property during the whole of said period was one thousand six hundred twelve and 50/100 ($1,612.50) dollars per year; that by reason of said Montgomery's improper care of said property it had depreciated in value to the extent of two thousand four hundred ($2,400.00) dollars; and prayed for judgment restoring possession to him, and for his damages measured by the value of the use and depreciation in value of said property, with interest thereon.
"On October 6, 1919, said Montgomery answered by general denial and demurrer.
"On January 5, 1920, the day the case went to trial, plaintiff filed his first amended original petition, by way of which he alleged in substance:
"That on June 11, 1916, he, Gallas, owned and was in possession of a certain outfit called a contractor's road-making outfit, consisting of certain mules, wagons, harness, tents, and a water wagon, all being located in Kaufman county, Texas, and being then and there used by plaintiff in constructing roads; that the mules were then and there worth $275.00 each, the wagons seventy-five ($75.00) dollars each, the tents fifty ($50.00) dollars each, the water tank sixty ($60.00) dollars, and the harness fifty ($50.00) dollars per set.
"That on said June 13, 1916, said Montgomery, through an illegal sequestration and subsequent replevy, deprived said Gallas of the possession of said property and took possession thereof himself.
"That on March 19, 1917, in a suit between the parties, then pending in the Seventy-Third judicial district of Texas, it was adjudicated that said writ of sequestration was illegally issued, and said writ was by judgment and order of court quashed and suppressed, with the further order that the property taken from the possession of said Gallas under said writ be restored to the possession of said Gallas.
"That in said suit in which the writ of sequestration was quashed the said Gallas was by cross-action seeking judgment against the said Montgomery for the wrongful detention of said property by him, pleading especially that he was entitled to recover of said Montgomery the value of the use of said property during the time Montgomery wrongfully detained said property. Montgomery in said suit denied that he was liable to said Gallas for detaining said property. That a trial was had in the district court for the Fifty-Seventh judicial district, to which court said cause had been transferred, and on the issues so joined a verdict of the jury was obtained, and on said verdict judgment entered establishing the possession of said property on the part of said Montgomery as wrongful, and holding said Montgomery liable in damages to said Gallas for the wrongful detention thereof; said judgment having been obtained on the 1st day of June, 1917, and being, in part, in favor of the said Gallas, and against the said Montgomery, for the sum of two thousand two hundred ninety ($2,290.00) dollars as damages for the value of the use of said property for a period beginning ten days after the date of the levy of the writ of sequestration and down to the date of said judgment, and offset said amount against the sums due on certain notes, secured by a chattel mortgage on said property, made the basis of said Montgomery's suit against the said Gallas.
"That said Montgomery prosecuted an appeal from the judgment next above referred to, and that this honorable Court of Appeals affirmed the judgment of the district court in so far as the award of damages in favor of Gallas and against Montgomery for the value of the use of said property was concerned. That, by reason of the action of the Court of Civil Appeals as set out, the judgment and order of the district court of Bexar county for the Seventy-Third judicial district of Texas, adjudicating that said writ of sequestration was illegally issued, and ordering said Montgomery to restore said property to the possession of said Gallas, and also the judgment of the district court of Bexar county for the Fifty-Seventh judicial district, adjudicating that the said Montgomery wrongfully detained said property from the possession of said Gallas, became absolutely final, and that said judgments and order were in full force and effect, and had been in full force and effect from the dates upon which they were respectively entered. *Page 559
"That in spite of said final judgments, above recited, the said Montgomery had continuously failed and refused to obey the order of said court requiring him to deliver possession of said property to said Gallas, but had refused deliberately and maliciously to return said property to said Gallas, and still deliberately and maliciously refused to so return the same.
"That the value of the use of said property from June 1, 1917, to the time of filing of said first amended original petition was reasonably the sum of nine thousand nine hundred sixty ($9,960.00) dollars for each and every year, making a total to the date of the filing of said pleading of twenty-four thousand seven hundred fifty-four ($24,754.00) dollars.
"That during the time said Montgomery was unlawfully withholding the possession of said property from Gallas, through his improper care of the same, the value of said property had depreciated to the extent of four thousand four hundred fifty ($4,450.00) dollars.
"That said Montgomery has so acted in the premises for the purpose of injuring plaintiff deliberately, willfully, and maliciously; that said Montgomery had removed said property from the state of Texas and into the state of Kentucky, and instead of bringing said property back to the state of Texas, so that same could be utilized for the purpose of paying off and satisfying a certain judgment in favor of Montgomery and against said Gallas, said Montgomery had kept said property and used the same for his own benefit in utter disregard of the judgment of the court, thereby becoming liable to said Gallas in the sum of seven thousand ($7,000.00) dollars as exemplary damages, in addition to the actual damages theretofore set up by said Gallas.
"In said amended pleading said Gallas further alleged that he had been informed and believed that Montgomery had disposed of some of said property, or that some of said property was beyond the jurisdiction of the court, in which said suit so filed; pleading his inability to designate the property so disposed of or held beyond the jurisdiction of the court, and asking for judgment for the value of any of said property not produced or accounted for by the said Montgomery; pleading the market value of said property at the time of the trial as follows: two hundred ($200.00) dollars per head or four hundred ($400.00) dollars per span for the mules, forty ($40.00) dollars for each wagon, fifty ($50.00) dollars per set of harness, and forty ($40.00) dollars for said water wagon; further alleging that the tents, even had they been properly cared for, would on the date of the filing of said pleading be worthless.
"in said amended petition said Gallas pleaded for a judgment ordering said property restored to him, for judgment for the value of the use of said property from the 1st day of June, 1917, to date of judgment, for depreciation in the value of said property during this detention, for the value of such of said property as was not produced or properly accounted for, and for his exemplary damages.
"To said amended pleading the defendant, Montgomery, replied by first amended original answer, containing general demurrer and general denial, and pleaded especially that during all the time said property was withheld from the plaintiff he, the said Montgomery, held said property as mortgagee for his protection as provided for in a mortgage on said property given him by said Gallas, denying that he asserted any claim of ownership to said property. Said Montgomery further alleged that in said suit of Montgomery v. Gallas, No. B-12359, tried in the Fifty-Seventh district court of Bexar county, being the same suit in which was rendered the judgment pleaded by said Gallas, that he, the said Montgomery, recovered judgment against Gallas for one thousand five hundred fifty-seven and 56/100 ($1,557.56) dollars, together with interest thereon from the 26th day of May, 1917, and costs of court, said sum remaining after allowing the recovery on said Gallas' cross-action; that on said judgment there was, at the date of filing of said amended answer, due and unpaid the sum of three thousand three hundred seventy and 71/100 ($3,370.71) dollars; that the payment of said sum was secured by chattel mortgage upon the property mentioned in plaintiff's amended petition, and that the judgment of the court above referred to had awarded and that there had been issued an order of sale then alive and outstanding under which said property was to be sold; that until said judgment was satisfied the plaintiff, Gallas, was not entitled to the possession of said property, but that possession of same might lawfully remain with the defendant.
"Defendant, Montgomery, further prayed that should the said Gallas recover any sum in said suit that the amount of his (the said Montgomery's) judgment in said cause No. B-12359 be offset against such recovery.
"Plaintiff, Gallas, then, on said January 5, 1920, filed a supplemental petition excepting to the allegations of defendant's amended answer on various grounds, denying the allegations contained therein, and alleging, further, that defendant, Montgomery, never took possession of said property under any power of authority that might have been given in said chattel mortgage, but that the defendant, Montgomery, waived such power and authority, should any have been given in that mortgage, sued out writ of sequestration, and took possession under a subsequent replevy."
Pursuant to a verdict on special issues, judgment was entered in favor of Gallas for $9,194.72, with interest from January 29, 1920, at the rate of 6 per cent. per annum; also adjudging the possession of the property to Gallas. "In said judgment the value of the several items of property was fixed, and it was further ordered that said Gallas recover of and from the said Montgomery the further sums as fixed by the court as the value of such said property as was not produced by the said Montgomery."
The remedial system of Texas being independent of forms of action, and the facts pleaded and proved being sufficient to entitle plaintiff to recover damages measured by the value of the use of the property, and to recover the mortgaged property if it should appear that the value of the use recoverable was equal to, or in excess of, he mortgage debt, it cannot be held that the court should have instructed a verdict for the defendant. *Page 560
We are not unmindful of the decisions to the effect that where the mortgagee's original taking of possession is wrongful, but before trial conditions arise which would authorize the mortgagee to take possession, the mortgagor could not recover possession without paying the mortgage debt. See L.R.A. 1915E, note 194-195. This does not mean, however, that the mortgagee could use the property and not account for the value of the use, nor that if he has been fully paid by such value that the mortgagor could not recover the property.
Appellant contends that the court should have given a special charge instructing the jury that, in determining the reasonable value of the use of plaintiff's outfit, they should determine what would have been the value of such use to plaintiff and no other person. The plaintiff pleaded that the value of the use of the property was reasonably worth $9,660 each year, or $24,754 for the total period He did not allege that by reason of any special circumstances the use of the property had a special value to him. The term "value of the use," when unaccompanied by allegations showing a special use for a particular purpose, means no more than "rental value." Sedgwick on Damages (9th Ed.) § 190; Alexander v. Bishop, 59 Iowa 572, 13 N.W. 714; Wood v. State, 66 Md. 61, 5 A. 476; Maryland Ice Co. v. Arctic Mfg. Co., 79 Md. 103, 29 A. 69. The measure of damages, therefore, would be the rental value of a contractor's road-making outfit, such as was described in the petition for the period for which it was shown to have been unlawfully withheld from plaintiff.
It is urged by appellant that the underlying principle is compensation for loss sustained, and that, as Gallas acquired similar property and made no money therewith, he should not be permitted to recover. Our courts state the rule applicable as follows:
"The very facts of this case is an apt illustration of the propriety in some cases of extending the measure of damages beyond that prescribed by the general rule. In this case the plaintiff was deprived of a wagon worth about $70, with a use per day, as shown by the evidence, of the reasonable value of about 75 cents. The trespass was committed on the 4th day of January, 1892, and the judgment was rendered on February 26, 1892. Giving the plaintiff the value of the wagon, with legal interest on that amount, would certainly not be compensation for the loss sustained by reason of the wrong committed. The use that he is deprived of is almost as valuable as the thing itself; and that value of the use with the property itself is conferred upon the wrongful trespasser, if the plaintiff is confined in his recovery to the value and interest. Such a rule would not only deprive the plaintiff of his property, but would permit a trespasser to profit by his own wrong, and it would afford a profitable enterprise to such wrongdoers in obtaining wrongful possession of property especially valuable for its use." Ward v. Odem, 153 S.W. 635; Moore v. King, 4 Tex. Civ. App. 397, 23 S.W. 484; Waller v. Hail,46 S.W. 82; Railey v. Hopkins, 50 Tex. Civ. App. 600, 110 S.W. 779; Endel v. Norris, 15 Tex. Civ. App. 140, 39 S.W. 608.
In the last cited case the court recognizes, but questions the wisdom of, the rule allowing the recovery of the value of the use beyond the immediate and temporary consequences necessarily resulting from the loss of possession. The editor of L.R.A. 1915B, in a note on page 293, expresses the same thought, as follows:
"Doubtless, however, the exception should not be applied so as to permit the recovery of the excess of the value of the use of the property over the interest, unless the plaintiff's loss of that excess may be regarded as the proximate result of the taking of the property by the defendant rather than of the plaintiff's fault in failing to replace the property promptly."
These expressions represent the viewpoint that compensation is the limit of recovery, but it seems from the quotation from our decisions that one of the considerations entering into the adoption of the rule adhered to is that a wrongdoer should not be permitted to profit by his own wrong; he should not be permitted to make use of property or rent it out, and retain the value of the use when it exceeds interest, and pay only the amount of the interest to the wronged person. If this principle is correct and furnishes a legitimate basis for the rule to be applied in measuring damages, it must be immaterial whether the injured person replaces the property by purchase and in fact loses money in the use of such other property. He might be fully compensated by allowing him to recover the value of the use up to the time of replacing the property, and allowing 6 per cent. on the value of the property from that time to the time of the trial, but at the same time the wrongdoer would be profiting by his act if allowed to retain the value of the use in excess of the amount he paid as interest. It would seem, however, that when the compensation feature has been taken care of, the right to prevent the wrongdoer from reaping a profit would be fully secured when he is made to pay the value of the use of the property for the purpose for which it was used by the owner and by such wrongdoer. To charge him with a greater sum, representing the value of the use for other purposes for which it could have been hired out, but would not have been, had it been retained by the owner, it seems would be to go further than to provide compensation and prevent a profit, and to inflict a fine or penalty. If it be the contention of the mortgagor that by reason of special conditions he could and would have rented his property for a special price, it would be necessary to plead as well as prove such facts.
In view of the foregoing conclusions we overrule assignments 2 and 5. We conclude, however, that in view of the facts in *Page 561 this case special charges Nos. 2 and 3 should have been given. While it is true that the issue submitted by the court required the jury to determine what was the reasonable value of the use of the outfit for the entire period, the defendant was entitled to the instruction asked, which would have furnished them a guide concerning their duty in arriving at such value. Nor can the refusal be sustained on the ground that there was no evidence of the value of the use by the day or week, and that, therefore, the charge was on the weight of the evidence. The reference to daily or weekly value of use could not have misled the jury or injured plaintiff. It was embraced in that part of the instruction wherein the jury were told what they should not use as a basis, and served to illustrate the idea made plain in the affirmative part of the instruction, namely, that value of the use for a short period might be much greater proportionately than for a long period. The use of such surplusage in the negative portion of the charge, wherein the jury were told what would not be the proper way to estimate damages, could not justify the refusal of the charge, for it was correct in so far as it affirmatively told the jury how to arrive at the amount, and it was just as fair to plaintiff as if the reference to the method improper to pursue had been confined to monthly value, instead of using the expression, "daily, weekly, or monthly value."
Complaint is made because the court refused to strike out a statement made by the sheriff, containing an estimate of the value placed by him on the property at the time same was replevied. The refusal to strike out evidence admitted without objection is discretionary with the trial court to some extent. Railway v. Lamothe, 76 Tex. 219, 13 S.W. 194. In addition, it does not appear that any harm could have resulted from the admission in evidence of the sheriff's valuation of the property, for the undisputed evidence was to the effect that the mules were worth, at the time such valuation was made, the sum fixed by the sheriff. It could not, therefore, have influenced the finding of the value at the time of the trial, which was less than half of said sum. So far as the wagons and sets of harness are concerned, the value at the time of trial was found to be greater than that fixed by the sheriff, and it cannot be contended that the sheriff's estimate influenced the finding of the jury with respect to said items. The finding of the jury with regard to the value at the time of the seizure furnishes no basis for any part of the judgment. The sixth, seventh, and eighth assigments are overruled.
When plaintiff, Gallas, undertook to testify concerning the value of the use of the road-grading outfit, objection was made to his qualification to testify, and it was developed that he did not know the rental value of such an outfit, and that the only knowledge he had at all concerning the value of the use was based upon hearsay as to what was paid per month at Wichita Falls by persons who rented a pair of mules, wagon, and harness. We think the witness failed to qualify to make an estimate of the rental value of the property for the period for which he sued, and there was no contention on his part that said outfit had any peculiar value to him greater than the rental value. An effort was made to show him to be qualified by eliciting the statement that there was no market for the hire of "mules and outfits of this character" in the state, and by then having him state how long he had been in the contracting business. The inquiry was then narrowed down to the value of the use of one team, wagon, and harness per month, and he was never asked whether he could estimate the value of the use of the entire contractor's outfit for 31 months, or to make such an estimate, it being assumed apparently that the value of the use of 11 teams for 31 months would be arrived at by taking the value of the use of one team for one month. When interrogated further, he twice made answers indicating that he based his estimate upon what he had heard with regard to what was paid for the use of a pair of mules, wagon, and harness at Wichita Falls, and not upon his own knowledge of the value of the property, the depreciation or injury caused by use, the amount that could be earned therewith, or any other elements which might enter into an estimate made for the purpose of showing the actual value of the use of property in the absence of a market value of such use. If it be true, as testified by him, that there was a demand for the use of teams "up in that country," it would seem that proof could be obtained of transactions sufficient to show a rental value. We do not consider his testimony, given subsequent to the ruling of the court holding him disqualified, as different, in substance and effect, from that given before the ruling of the court, and believe the court erred in changing his ruling. The jury based its verdict on Gallas' testimony, and reached the result attained by taking his estimate of the rental value of a pair of mules per month at Wichita Falls, based, as he candidly admitted, on pure hearsay, and multiplying said sum by the number of months, 31. Some of the jurors admitted they did not believe the testimony of Cullom and Griffin, and had no other evidence before them except that of Gallas, so adopted his figures as a basis This was natural in view of the fact that his figures would result in a verdict for less than half of the sums testified to by Cullom and Griffin. It appears from the testimony of some of the jurors that Gallas' estimate of the value of the use of one team per month coincided fairly well with a statement by the juror Herrera, who told his fellow jurors he had once rented out a small team and harness, without a wagon, for $35 a month. The *Page 562 testimony of the jurors indicated that two of them thought that what Gallas claimed was too much, but finally agreed to the verdict. The jury would naturally look with much doubt upon all the testimony introduced with respect to value of the use for the reason that Gallas in his original petition, filed June 10, 1919, only claimed such value of the use to be $1,612 per year, but, after obtaining the depositions of Cullom and Griffin, amended and changed the figures to $9,660 per year. When asked to explain how he came to make this change in six months' time, he said: "Well, we are working now in the oil field and getting bigger prices for our work; last June I was working on the Denver Railroad. No; I was not working in the oil fields in 1917." It was also shown by the pleadings and judgment in the former case, introduced by plaintiff, that the jury found the value of the use of said property for a period of about 10 months preceding the beginning of the period sued for herein to be $2,290. The plaintiff also introduced the valuation placed by the sheriff upon the property at the time it was replevied by defendant, and said valuation, $6,805, was found by the jury to have been the reasonable market value at that time, and they also found that the mules had each declined in value $172.70. In view of these figures, the estimates of Cullom and Griffin must have appealed to the jurors as undoubtedly erroneous. It is a matter of common knowledge that there would have to be very exceptional circumstances to make the use of property for a year worth 50 per cent. more than its value. "It is the province of the jury to pass on the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence was not reliable." Railway v. Runnels, 92 Tex. 305, 47 S.W. 971; Blount-Decker Co. v. Martin, 190 S.W. 232; Railway v. Decatur Oil Co., 193 S.W. 394. Aside from the testimony of jurors, which it would probably not be proper to consider except on issues relating to misconduct, it is deducible from the verdict that the jury did not credit the testimony of Griffin and Cullom, or at least that it is impossible to say that they did credit the same. It is further shown by the record that the jury might have good grounds for so doing. It cannot be held, therefore, that the admission of Gallas' testimony constituted harmless error. We see no misconduct on the part of the jury in so far as it based its finding on Gallas' testimony. The error lies in permitting the introduction of the evidence, and in failing to give the jury a charge which would have put them on notice that the value per month of one team could not furnish a legitimate basis for estimating the value of an entire grading outfit for 31 months. The ninth, tenth, eleventh, and thirteenth assignments are overruled. The twelfth assignment is sustained.
Appellees present a cross-assignment complaining of the refusal of the court to submit requested issues and instructions relating to exemplary damages. We do not think the court erred in refusing to submit the issue, and, had he decided to do so, he would have erred had he adopted, as the proper guide for the jury, the two special charges requested by appellee. The first ignores the element of malice, although such element was the one relied on in the pleadings. If it be conceded that the facts show no more than the things mentioned in this charge, it is evident that exemplary damages are not recoverable. The second states correctly a rule used in determining whether a verdict for exemplary damages is excessive, but such rule is not an absolute one to be applied in all cases in fixing a limit beyond which punitive damages may not be imposed. Tynberg v. Cohen, 76 Tex. 416, 13 S.W. 316; Cotton v. Cooper (Com.App.) 209 S.W. 135. It is not the law that the jury must in all cases in which they find plaintiff entitled to exemplary damages assess the amount at not less than would be reasonably proportionate to the amount of actual damages. The special charge would have required the jury to do this, and it was clearly erroneous.
The judgment is reversed and the cause remanded.
If it be true, as stated in the case of Vaughn v. Charpio, 213 S.W. 950, that "it is not proper to estimate the value of the use of a team and wagon for a period of 17 months by proof of the value of its use by the day," which holding seems to be fully sustained by the cases cited therein, it must be true that a person seeking to recover for the use of many teams and wagons for a long period of time should furnish to the court some evidence of what the value of the use for that period of time would be. If he does not do this, but merely introduces evidence of the value by the day or month, which is so obviously inadequate to furnish a basis for the long period as to meet the condemnation of the courts, on what theory can his demand be granted to the effect that *Page 563 the Jury ought in his special case to be permitted to use as a basis for estimating the long time the very rule condemned by the courts? There is, of course, no merit in the contention that just because the court asked the jury to find the value for the long period, it was unnecessary to tell the jury that it should not make its estimate by adopting a rule condemned by the courts as obviously unsound. If plaintiff's testimony concerning the value of one wagon and team for one month is subject to the objection pointed out in the cases of Hudson v. Wilkinson, 45 Tex. 453, and Railey v. Hopkins, 50 Tex. Civ. App. 603, 110 S.W. 779, to the effect that it furnished no reasonable criterion for an estimate for the time the jury were called upon to assess the defendant, then it seems the plaintiff failed to furnish such a basis for estimating the value of the use as would be deemed sufficient in law. The defendant requested a charge, in effect, instructing the jury that it could not use testimony which furnished no reasonable criterion for an estimate for the purpose of assessing the damages required to be estimated. To hold that such a charge should not be given is to hold that plaintiff can introduce evidence insufficient to furnish a criterion for assessing his damages, and in some mysterious way such evidence will become sufficient, or at least it ought to be left optional with the jury to determine whether or not it is sufficient.
The assignment relating to the testimony of Gallas is not briefed as well as it might be, but we consider it sufficient to raise the issue whether Gallas had qualified to testify to the value of the use of the property. We concluded that his testimony as a whole showed that, despite much effort to have him give his opinion from his experience as a contractor, he disclosed that his statement was based on what he was told concerning the renting of a wagon and team at Wichita Falls.
In the intemperate argument filed in behalf of appellee it is stated that this is not a case in which the judgment of the court can be reviewed by another tribunal, and that therefore all that appellee can do is to appeal to the sense of fairness of the court. This statement discloses a want of confidence in the interpretation placed upon the holdings of this court as described in the argument. Surely if this court has made the holdings of law described, one of which is asserted to be entirely original, not supported by a single decision of a single court, we may with confidence believe that the Supreme Court has jurisdiction of the case.
We see no reason for changing the conclusions announced in the original opinion, and overrule the motion for rehearing.