Petroleum Wholesale, Inc. v. Michael Davis, et al.--Appeal from 133rd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-126-CV

PETROLEUM WHOLESALE, INC.,

Appellant

v.

MICHAEL DAVIS, ET AL.,

Appellees

From the 133rd District Court

Harris County, Texas

Trial Court # 91-02770

O P I N I O N

This is an appeal by Appellant Petroleum Wholesale from that portion of a judgment which awarded Appellee A.V. Davis $71,000 in damages for breach of contract. Michael and A.V. Davis sued Appellant to recover damage for personal injuries to Michael, damages for rental value, and injury to a hydraulic crane owned by A. V. Davis. These damages were sustained when the crane, operated by Michael, toppled over while trying to lift a portable cement batch plant owned by Appellant. Only damages concerning the crane are involved in this appeal.

Trial was to a jury which found:

the negligence of Petroleum Wholesale caused the occurrence (Question 1);

Petroleum Wholesale did not comply with its agreement to pay A.V. Davis for the damage to the crane (Question 2);

$18,000 to be the cost of repairs to the crane and $6,800 to be the lost profits resulting from the occurrence (Question 7); and

the difference in the market value of the crane before and after the occurrence to be $65,000 (Question 8).

Petroleum Wholesale moved the trial court to disregard Question 8 regarding market value of the crane and render judgment on the remainder of the jury's findings. The trial court denied Appellant's motion and rendered judgment for A.V. Davis in accordance with the jury's findings of $65,000 diminution in market value of the crane and $6,000 in lost profits.

Appellant Petroleum Wholesale appeals on one point: "The trial court erred in denying the motion to disregard the jury findings because the property damage award under the judgment was not the proper measure of damages."

Appellant asserts the damages to be awarded were governed by the parties' contract; that such required an award for costs of repairs and lost profits only, i.e. $24,000; and that the difference in value finding of $65,000 is not applicable.

The contract of the parties provided in pertinent part:

[Petroleum Wholesale] agrees to accept full responsibility and liability for any and damages to the equipment . . . for any causes whatsoever other than ordinary wear and tear; to return all equipment . . . to [plaintiff's] warehouse in as good condition as when received, ordinary wear and tear excepted; to pay for repairs and replacements of all parts damaged by misuse or for all other extraordinary damage done.

The crane was damaged while performing work on Appellant's job site. Appellant failed to pay for damages to the crane after the accident and Appellee sued for breach of contract and for negligence.

The jury found Appellant was negligent; that appellant breached its contract; that cost of repairs to the crane was $18,000; that $6,800 was profits lost; that $65,000 was the difference in market value of the crane before and after the accident.

The general rule for measuring damages to personalty is the difference in the market value immediately before and after injury to such property, or at the plaintiff's election, the reasonable cost of repair together with the value of the loss of use during the repairs. Pasadena State Bank v. Isaac, 228 S.W.2d 127 (Tex.). Upon breach of a contract a party may pursue any remedy which the law affords in addition to the remedy provided in the contract. The fact that a contract provides a particular remedy does not mean that remedy is exclusive unless it is declared to be or it is clearly indicated. Accent Builders Co., Inc. v. Southwest Concrete Systems, Inc., (Tex. App. Dallas, n.r.e.) 679 S.W.2d 106; Pelto Oil Corp. v. CSX Oil & Gas Corp., (Tex. App. Houston [1st Dist.]) 804 S.W.2d 583; Bifano v. Young, (Tex. App. Corpus Christi, n.r.e.) 665 S.W.2d 536.

The language in the parties' contract here contains no language that can be construed as establishing an exclusive remedy. The trial court was thus authorized to fix Appellees' damages under the general rule and the jury's finding of the difference in before-and-after-injury value of $65,000.

Appellant's point is overruled.

Nevertheless, the trial court's judgment is in our view excessive in the amount of $6,000. The trial court, in awarding the difference in before-and-after value, was not authorized to additionally award $6,000 for loss of use resulting from the occurrence.

We reform the judgment by deleting therefrom the $71,000 item of damages for breach of contract plus prejudgment interest, and substitute therefor the sum of $65,000 plus prejudgment interest at 10% from June 19, 1991, to May 24, 1993. In all other respects the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Reformed and affirmed

Opinion delivered and filed March 2, 1994

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