
    J. C. KILLGORE & CO. v. WHITAKER.
    (No. 6135.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1920.)
    1. Bailment <&wkey;30 — Petition by bailob to RECOVER IT OR VALUE OF CAR AND ACCESSORIES CONVERTED SUFFICIENT.
    Allegations that 'a ear left with defendants for repairs was sold after notice, under Rev. St. 1911, art. 5667, and that certain accessories had been converted, etc., held, to state a good cause of action, although not alleging that plaintiff was entitled to possession of the car or had tendered the charges due, since the petition did not admit that charges were due or that sale was legal, and in any event the allegations alleging the conversion of accessories rendered the petition good at least in part.
    2. Trial &wkey;>355(2) — Special verdict too uncertain TO SUSTAIN JUDGMENT.
    In action for value of accessories in an' automobile delivered to defendants for repairing, the jury’s affirmative answer to question whether the defendants or any one else removed the accessories from the car does not sustain a judgment for plaintiff, since the finding did not establish that defendants, or any one for whom they were responsible, removed the accessories.
    3. Appeal and error <&wkey;>930(3) — Finding to-SUPPORT JUDGMENT ON SPECIAL VERDICT NQT PRESUMED WHEN UNSUPPORTED BY EVIDENCE.
    In action for value of automobile accessories removed from a car delivered to defendants for repairing, it cannot be presumed, in order to support a judgment for plaintiff on special verdict, that the trial court found defendants removed the accessories, where the evidence only showed that they were removed while the car was in defendants’ possession, and there was testimony denying removal by defendants or any one in their employ.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    Suit by J. H. Whitaker against J. C. Kill-gore & Co. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded for new trial.
    Nathan Patten, of Waco, for appellants.
    R. Q. Murphree, of Waco, for appellee.
   BRADY, J.

Appellee, J. H. Whitaker, sued the appellants, J. C. Killgore & Co., a partnership, to recover the value of an automobile and damages for the loss of the use thereof, and also for damages for the removal of certain casings, tools, and accessories while in the possession of appellants. The case was submitted to a jury upon special issues, and upon the verdict judgment was rendered for appellee for the sum of $59.66, this amount being arrived at by adding the value of the casings, tools, and ac-sessories found by the jury to have been removed from the car while in the possession of appellant to the sum for. which the car sold at auction to appellants, and by deducting from this total the repair bill found to have ■ been due appellants. The material facts will be sufficiently stated in the opinion of the court.

Opinion.

The first point relied upon for reversal is presented as fundamental error, and is to the effect that the trial court erred in not sustaining a general demurrer to the petition. The record does not show that the trial court acted upon the general demurrer, but, in view of the disposition we shall make of this appeal, we will indicate four views upon the contention.

Specifically it is claimed that the petition did not state a good cause of action,, because it was alleged that appellee left the car with appellants for repairs, and after due notice it was sold by appellants under article 5667, Revised Statutes; and, since it was not alleged that appellee was entitled to the possession of the car, or had paid or tendered the charges due, it stated no cause of action, and was subject to general demurrer. We regard the contention as inadmissible. While it was alleged that the car was sold by appellants for repairs, under Statutory authority, it was not admitted that there were any repair charges due, nor that the sale was legally made, and damages were claimed for the value of the car. Under the presumptions obtaining in favor of a petition as against general demurrer, the pleadings in this case stated a good cause of action. Furthermore, the appellee relied not only upon the alleged conversion of the ear, but also claimed that appellants had wrongfully converted certain casings and accessories, for the value of which he sued;, therefore the petition, in part at least, stated a good cause of action, independently of the averments as to the conversion of the car. For the reasons indicated, the first point is overruled.

The remaining contention is that the trial court erred in entering judgment for appellee, because the verdict'of the jury is vague and uncertain, and forms no basis for the rendition of a valid judgment, and also is not responsive to the question submitted.

The first special issue submitted to the jury was as follows:

“Did J. O. Killgore, or any one else, remove the tires and tools belonging to the car in question and fail to put them back before the car was sold at auction?”

The jury were also instructed to find the value of such tires and tools in event they made affirmative answer to the first question. The jury answered question No. 1 “Yes,” and found the value of the tires and tools as fhe sum of $80.76.

It cannot be successfully contended that the jury’s answer was not responsive, but we conclude that the assignment is well taken, upon the ground that the verdict is too indefinite and uncertain to form. the basis of a valid judgment. We also regard the action of the trial court in entering judgment upon this verdict as fundamental error, for the reason that the question and answer under the first special issue did not fix responsibility upon appellant. In effect, the jury found that appellants or some one else removed the tires and tools. 'Under this finding it is not disclosed who removed the property. It might hpve been appellee himself, or some one else for whose act appellants would not be liable.

There is no room for the claim that the court is presumed to have found facts fixing liability upon appellants from the undisputed evidence. The statement of facts made by the trial court shows not a scintilla of evidence that the accessories were removed from the car through the fault of appellants; the only evidence being that they were removed while in appellants’ possession. There was evidence offered by appellants denying that the parts were removed by the firm, or by any one in their employ, or under their direction.

In the state of the record, the judgment is not supported by the verdict or by the evidence, and the cause must be reversed and remanded for another trial.

Reversed and remanded. 
      
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