LEE ROY WESTBROOK CONSTRUCTION FROM A DISTRICT COURT COMPANY, INC., COMMERCIAL UNION INSURANCE COMPANY, AND ST. PAUL FIRE INSURANCE COMPANY, APPELLANTS, v. TEXAS FORMING SYSTEMS AND SUPPLIES, INC., APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00683-CV
 
LEE ROY WESTBROOK CONSTRUCTION FROM A DISTRICT COURT
COMPANY, INC., COMMERCIAL UNION
INSURANCE COMPANY, AND ST. PAUL
FIRE INSURANCE COMPANY,
 
        APPELLANTS,
 
v.
 
TEXAS FORMING SYSTEMS AND
SUPPLIES, INC.,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, BURNETT AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
AUGUST 31, 1989
        This is an appeal from a judgment for Texas Forming Systems and Supplies, Inc. (Texas Forming) against Lee Roy Westbrook Construction Co., Inc. (Westbrook). The other appellants are Commercial Union Insurance Company and St. Paul Fire and Marine Insurance Company FN:1 , the bonding companies on the project in question. The jury awarded Texas Forming damages pursuant to an equipment rental agreement with Westbrook for unpaid rent and for nonreturn of various concrete construction forming equipment. FN:2 In six points of error, Westbrook contends that the trial court erred in: 1) failing to present and in denying requested jury questions and instructions with respect to Westbrook's affirmative defense of estoppel; 2) denying their affirmative defense of estoppel; 3) submitting jury questions without evidence or with insufficient evidence in connection with delivery tickets A-13, A-14 and A-15; 4) awarding excessive damages; and 5) admitting into evidence, over objection, a construction site photograph. We affirm.
        In July 1985, Texas Forming commenced furnishing steel and aluminum shoring and scaffolding equipment to Westbrook for use on a construction project known as Aberdeen Office Building and Parking Garage (the Project). Kelly-Nelson Construction Company (Kelly-Nelson) was the general contractor for the Project. The equipment was used to construct concrete slabs in the structures.
        Texas Forming's drivers delivered the equipment to Westbrook at the construction site at various times throughout the construction period where it was put in place by Westbrook. Texas Forming sued Westbrook for both unpaid rentals and nonreturned equipment. Westbrook's contention was that they never received the equipment and that it was stolen by Texas Forming's drivers.
        In its first two points of error, Westbrook contends that the trial court erred in refusing to include in the charge instructions and jury questions on its affirmative defense of estoppel. Westbrook asserts that it raised an issue on estoppel through its pleadings and by evidence of the actions of Texas Forming's agents. Westbrook relies on evidence that Texas Forming's agents failed to follow their own company policy of always obtaining signatures denoting receipt and delivery on their delivery tickets. There was also tendered evidence that some of Texas Forming's drivers had been convicted of crimes and could have forged signatures on the delivery tickets, and proof that Texas Forming sometimes permitted returned equipment to sit in their yard for days before counting it for their customers' credit, thereby inviting possible theft.
        If there is some evidence to support the submission of an issue, it is error to refuse to submit it. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex. 1985). The evidence relied upon by Westbrook to raise a fact issue as to Texas Forming being estopped to assert a claim for loss due to its own agents' misconduct is however based on surmise and conjecture. There is no evidence whatsoever that Texas Forming's agents stole any equipment or permitted it to be stolen.
        There was evidence from Westbrook's employees that signatures on some delivery tickets denoting delivery were not their own. However, this does not amount to evidence that the Texas Forming drivers, who were to deliver the equipment, stole it rather than delivered it. At best, this is a mere surmise on Westbrook's part and does not support the submission of an estoppel issue. Because this theory was not raised by any probative evidence, the trial court did not err in failing to submit or refusing issues and instructions on estoppel. See Lumberman's Underwriting Alliance v. Bell, 594 S.W.2d 569, 570 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.); Laughlin v. Federal Deposit Ins. Corp., 657 S.W.2d 477, 481 (Tex. App.--Tyler 1983, no writ). We overrule Westbrook's first two points of error.
        In its third point of error, Westbrook contends that the trial court erred in refusing to submit the affirmative defense of estoppel because such refusal was against the great weight and preponderance of the evidence. Because we have held that there was no probative evidence to support submission of an estoppel issue, any denial by the trial court concerning estoppel would not be error. We overrule point of error number three.
        In point of error number four, Westbrook asserts that there was no evidence to support submission of a jury question with respect to the equipment covered by delivery tickets A-13, A-14 and A-15. They argue that there is no evidence of delivery and receipt by Westbrook of this equipment. In order to constitute a bailment transaction, there must be a contract, express or implied, delivery of the property by the bailor, and acceptance of the property by the bailee. Allright Auto Parks, Inc. v. Moore, 560 S.W.2d 129, 130 (Tex. Civ. App.--San Antonio 1977, writ ref'd n.r.e.).
        In reviewing a no evidence point of error, we consider only the evidence and inferences tending to support the jury verdict and disregard all evidence to the contrary. If there is any evidence of probative value to support the jury verdict, we must affirm. See International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex. 1985). If, after doing so, there is any evidence of probative force to support the finding of the jury, such a finding is conclusive and binding. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In reviewing a factual sufficiency or insufficient evidence point, the court must examine the entire record to determine if there is sufficient evidence of probative value to support the findings of the jury. Baker Marine Corp. v. Moseley, 645 S.W.2d 486, 490 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.).
        The jury found that:
 
 
            1) Texas Forming delivered to Westbrook all of the     items listed in the delivery tickets;
 
            2) Westbrook did not return to Texas Forming all of     the equipment that Texas Forming had delivered; and
 
            3) The cost of replacement as well as the fair     market value for the equipment Westbrook failed to return is $69,960.00.
        Concerning delivery ticket A-13, the record shows that the signature at the bottom of this delivery ticket reads, "Eleasar Elizondo." In its answer to interrogatory number six, Westbrook admitted that an Eleasar Elizondo worked for Westbrook "during at least part of the time frame in question." Although Westbrook disputed the validity of the signatures on the delivery tickets and argued that no employee named "Eleasar Elizondo" had authority to accept equipment for Westbrook, this is clearly some evidence of delivery and acceptance of the equipment.
        Westbrook also denied that the equipment shown in delivery ticket A-14 was delivered and accepted. This delivery ticket discloses on its signature line that the equipment was accepted by "Robert Leach." Robert Leach testified that he accepted the equipment, that he was, at that time, an employee of the general contractor, Kelly-Nelson, and that only Westbrook used the equipment.
        Concerning delivery ticket A-15, it shows on the "received" line a signature which appears to say "Eleaz__ Elz__." The signature appears to have been signed quickly and without care. However, this is some evidence from which a jury could find that a Westbrook employee, Eleasar Elizondo, accepted the equipment.
        There was evidence that Westbrook could not have completed the job without using all of the equipment reflected by Texas Forming's delivery tickets, and that Texas Forming was the only supplier of such equipment to Westbrook for the Project. Rick Valuzzi, Texas Forming's salesman, testified that he personally observed all of the equipment on the jobsite and that he did an inventory at the Project, as he always does, to make certain that the equipment was received and being used properly.
        Westbrook argues that its witnesses testified that they did not need all of the equipment to complete the job, that there was an excess of equipment which it reported to Texas Forming, that other contractors working on the Project were using similar equipment, and that if the equipment was accepted, it was not accepted by persons authorized by them to do so. Westbrook asserts that if Robert Leach accepted any equipment, he accepted it for Kelly-Nelson and not for Westbrook.
        We hold that there is sufficient evidence of delivery and acceptance. The jury was entitled to believe Texas Forming's witnesses as to these matters and to disbelieve Westbrook's witnesses. See Anderson v. Trent, 685 S.W.2d 712, 713 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). Witnesses testified that all of the equipment was needed and that it was seen being used by Westbrook. Because we conclude that the evidence was sufficient, we, necessarily, find that there was some evidence of delivery and acceptance. We overrule Westbrook's fourth and fifth points of error.
        In its sixth point of error, Westbrook contends that the trial court erred in that the damages found by the jury were manifestly too large and excessive. Westbrook argues that the damages were too large because: 1) the jury was not allowed to consider its estoppel defense; 2) there was no evidence with respect to delivery tickets A-13, A-14 and A-15; 3) there was no evidence or insufficient evidence of acceptance of the equipment with regard to all of the challenged delivery tickets FN:3 ; and 4) the jury's verdict was against the overwhelming weight and preponderance of the evidence.
        As to Westbrook's estoppel defense and its argument concerning delivery tickets A-13, A-14 and A-15, we have already addressed these contentions and found that these arguments are without merit. We now address Westbrook's claims concerning delivery tickets A-1, A-8, A-9, A-10 and A-11. We view this point of error as being both a legal and factual sufficiency challenge to the jury's findings as to delivery and acceptance of the equipment covered by these tickets. Although Westbrook complains of excessive damages under this point, its argument also challenges the sufficiency of the evidence. Our standard of review for no evidence and insufficient evidence points has been previously stated. See Baker Marine Corp. v. Moseley, 645 S.W.2d at 490; In re Kings Estate, 244 S.W.2d at 597.
        A review of all of the evidence shows that delivery ticket A-1 was signed on the "delivered" line by what appears to be "Elaz ___." This signature appears to have been hastily scrawled and, like delivery tickets A-10, A-11 and A-15 could be attributed under the evidence to "Eleasar Elizondo," a Westbrook employee.
        Delivery tickets A-8 and A-9 are signed "Luis Elizondo." Westbrook, however, denied the authenticity of this signature. Luis Elizondo, Westbrook's employee, testified that the signatures were not his and that his last name was spelled incorrectly, although he agreed to both spellings of his last name: Elisondo and Elizondo.
        Further, regarding delivery tickets A-8 and A-9, these tickets disclose that 380 four-foot by six-foot shore frames were ordered and shipped. Totaling all of the delivery tickets shows that 1,332 of these shore frames were ordered and shipped. Texas Forming's "inventory receiving reports" discloses that 1,331 FN:4 of these frames were returned by Westbrook. In its admissions in response to Texas Forming's discovery pleadings, Westbrook admitted that all items listed as received by Texas Forming on their inventory receiving reports were indeed returned. It follows that since at least the frames shown on delivery tickets A-8 and A-9 were shown as returned by Westbrook, they must have been actually received by Westbrook so that they could be returned. We hold that there is sufficient evidence of delivery and acceptance of the items listed in delivery tickets A-8 and A-9.
        A review of the evidence discloses that Westbrook could not have completed the job without all of the listed equipment, that the equipment was seen by Texas Forming Employees in place at the Project and that only Westbrook was using the forming equipment furnished by Texas Forming. There was additional evidence indicating that all of the items listed on the delivery tickets were indeed delivered and received. The record reveals that 1,636 "frame nailing plates" FN:5 were shown as shipped by Texas Forming and Westbrook admitted returning 1,490 of them to Texas Forming. However, because only 774 were shipped under delivery tickets which Westbrook does not dispute, this discloses that 716 frame nailing plates which Westbrook returned were shown on delivery tickets they deny receiving.
        There was testimony that large items, such as the aluminum beams listed on delivery tickets A-10 and A-11, were inventoried, in particular due to their size, by Rick Valuzzi. We hold that there was sufficient evidence of delivery and acceptance of the equipment listed in the challenged delivery tickets. See International Armament, 686 S.W.2d at 597; Baker Marine, 645 S.W.2d at 490; In re King's Estate, 244 S.W.2d at 661. Therefore, there is, of necessity, some evidence of the same. Westbrook's contention is without merit.
        Westbrook contends in this same point of error that the damages awarded were excessive. In determining whether the damages awarded were so excessive as to warrant remittitur, this court employs the same test as with a factual insufficiency or "no evidence" point. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). Our standard of review for "no evidence" points has been previously stated. International Armament, 686 S.W.2d at 597.
        Brad Oglesby, Westbrook's own expert, testified that for equipment similar to that alleged not to have been returned, the purchase prices prevailing as of 1985 from Patton Scaffolding, a manufacturer, would be $69,271.76. Other amounts quoted by Oglesby, obtained from two other scaffolding companies, were $74,343.56 and $88,032.70. The jury awarded $69,960.00. We hold that there was some evidence to support the jury's finding that the cost of replacement as well as the market value for the equipment not returned is $69,960.00. The damages awarded were not so excessive as to warrant remittitur. We overrule point of error number six.
        By their seventh point of error, Westbrook contends that the trial court erred in admitting into evidence plaintiff's exhibit number six, which was a photograph of a job site other than the one the subject of the dispute. The photograph was presented by Texas Forming through its witness Terry Allen, as he sought to describe how the type of cement forming equipment in question is used. Westbrook objected, complaining that the photograph of a different project was "not necessarily indicative of what was truly utilized" on their Project. Westbrook complains that the photograph confused the jury as to the way the equipment was actually used at the Project.
        A trial court has wide discretion concerning the admissibility of photographs. Miller v. Patterson, 537 S.W.2d 360, 363 (Tex. Civ. App.--Forth Worth 1976, no writ). The question on appeal is whether the trial court abused its discretion. Id. Photographs are generally admissible to explain evidence and to assist the trier of fact in understanding the case. Bell v. Buddies Super Market, 516 S.W.2d 447, 450 (Tex. Civ. App.--Tyler 1974, writ ref'd n.r.e.). The trial court could have reasonably concluded that the photograph, which was enlarged, could aid the jury in understanding what kind of equipment was being described by Texas Forming's witness. The jury heard evidence that the photograph depicted a jobsite different from the Aberdeen Project. We hold that the trial court did not abuse its discretion. We overrule Westbrook's seventh point of error.
        Finding no reversible error in the trial below, the judgment is affirmed.
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
8800683F.
 
FN:1 Appellants will be collectively referred to as "Westbrook."
FN:2 The record reflects that over 19,000 pieces of scaffolding, forms and braces were rented to Westbrook.
FN:3 The "challenged" delivery tickets are A-1, A-8, A-9, A-10, A-11, A-13, A-14 and A-15.
FN:4 Apparently one was not accounted for or the receivers miscounted.
FN:5 Frame nailing plates were listed as shipped on delivery tickets A-1, A-2, A-4, A-10 and A-15. The only delivery tickets of these not disputed by Westbrook are A-2 and A-4.
File Date[08-31-89]
File Name[880683F]