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Tyrrell-Combest Realty v. Adams

Court of Civil Appeals of Texas, Beaumont
Feb 16, 1927
291 S.W. 252 (Tex. Civ. App. 1927)


No. 1448.

February 3, 1927. Rehearing Denied February 16, 1927.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by J. D. Adams against the Tyrrell-Combest Realty Company, in which defendant interposed a cross-action. Judgment for plaintiff and order overruling a motion for a new trial, and defendant appeals. Reversed and remanded.

Crook, Lefler, Cunningham Murphy, of Beaumont, for appellant.

Howth, Adams Hart, of Beaumont, for appellee.

Appellee sued appellant to recover $3,000, alleged to be due him under a written contract for the boring of certain water wells. Appellant answered by general denial, and specially that appellee failed to comply with the terms of the contract, which obligated him to drill a well or wells that would furnish 4,000 barrels of water every 24 hours, good for drinking, and suitable for all domestic and household purposes. Appellant also, by cross-action, sought judgment against appellee for $1,284.59, for money paid for labor and materials furnished at the request of appellee.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered for appellee in the sum of $1,715.14. This because by agreement of the parties that appellant had advanced to appellee the sum of $1,284.59 in the form of certain materials and labor, which, being deducted from the amount sued for, $3,000, left the sum for which judgment was given.

Motion for a new trial was overruled, and the case is before us for review on appeal.

The controlling question is whether appellee complied with the following clause in the contract:

(a) "To drill in sufficient number, not to exceed eight, well or wells on blocks twenty-five (25), forty-two (42) and forty-four (44), as directed by second party sufficient to produce every twenty-four hours consecutively for ten (10) days four thousand (4,000) barrels of good drinking water, suitable for all domestic and household purposes."

The evidence showed that two wells were bored, and the jury found that they furnished the quantity of water called for, and that the water was good drinking water, suitable for all domestic and household purposes. The contest in the main is whether the water was of the quality contracted for — "good drinking water, suitable for all domestic and household purposes." Appellant contended that the water produced was not good for drinking, nor suitable for all domestic and household purposes, because it contained too high a percentage of salt. It was shown by several expert witnesses — chemists who had made chemical analysis of the water — that it contained from 105 of 124 grains of salt to the gallon, and that such water was not good for either drinking or domestic purposes.

In attempting to show that the water was "good drinking water," and was "suitable for all domestic and household purposes," appellee offered the testimony of several nonexpert witnesses, and himself testified, that they drank the water and washed their faces and hands and their clothes in the water, and that it lathered with soap all right, and that it was good for drinking, and suitable for all domestic purposes. All of this testimony was objected to by appellant, on the ground that none of the witnesses so testifying had qualified as experts to testify as to the quality of the water, nor as to its effect on the human system, when drank regularly, nor whether water containing the percentage of salt shown was fit for domestic and household purposes, and, further, that the question at issue was a scientific one that could be determined only by expert witnesses duly qualified to testify as to the contents of the water and the effect a constant use of same would have on the human system when used for a considerable length of time, and as to the effect it would have on machinery and other things when used for domestic and household purposes — all of which objections were overruled, and the testimony allowed to go to the jury. Appellant duly preserved bills of exception to the evidence and its admission, and this is the determining question in the case.

We think the court erred in admitting the testimony. If a witness had used the water for a long time as drinking water, or for the generation of steam, he could speak from actual experience as to its effect in either instance, but a casual use for only a very brief duration would not qualify him to give his opinion as to its suitableness for the purposes named. Whether water is contaminated with impurities, or contains ingredients rendering it hurtful, and maybe dangerous to the human system, and unfit for domestic use, if used continuously, is a matter for scientific investigation and analysis, and cannot be correctly determined other than by such scientific investigation as will disclose its elements and their effect when used for the purposes in question, or by such continued use as will demonstrate its safe and suitable adaptability to same, or the contrary. The matter here in controversy is not one where the truth must ultimately rest in inference, but is one susceptible of exact determination by scientific analysis. Nonexpert witnesses, when allowed to give their opinions, must give the facts upon which their opinions are based, and these facts must be such as to render them able to arrive at an intelligent opinion with respect to the matter about which they testified. Gulf, C. S. F. R. Co. v. Hepner, 83 Tex. 136, 140, 18 S.W. 441; Gulf, C. S. F. R. Co. v. Richards, 83 Tex. 203, 200, 18 S.W. 611; Rogers v. Crain, 30 Tex. 284, 290; Elliott v. Ferguson, 37 Tex. Civ. App. 40, 83 S.W. 59; 2 Jones on Evidence, §§ 366, 367; 11 R.C.L. p. 34, § 33; 22 C.J. p. 498, § 594. The facts given by appellee's witnesses, upon which they based their opinions as to the quality of water, showed no such use of the water as to make them able to correctly form an opinion as to the usability of the water for any of the purposes in question. The mere casual drinking of the water, or the washing of one's face and hands or clothes, the uses not continuing for any appreciable length of time, will not qualify one to testify by giving his opinion as to the fitness of the water for the purposes named, and especially is this true as to whether the water is "good for drinking."

It has been held: That in an action involving the question of whether certain beer was intoxicating, a witness who was experienced in the manufacture and taste of beer, could not testify as to the amount of alcohol in the beer by tasting same. Commonwealth v. Collier, 134 Mass. 203. That in an action for polluting a stream a nonexpert witness could not give his opinion as to whether the alleged pollution made the premises involved unhealthy or uninhabitable. Stennett v. City of Bessemer, 154 Ala. 637, 45 So. 890. That a nonexpert witness could not testify that smoke coming from a certain chimney was not of such character as to be dangerous to the health, life, and property of persons living in the vicinity, or to the public at large, or that the smoke did not constitute a public nuisance. Moses v. United States, 16 App.D.C. 428, 50 L.R.A. 532. That the power of resistance of iron of a given dimension and fiber is a scientific question, about which the average person has no information — a subject calling for expert testimony. Fraternal Construction Co. v. Foundry Machine Co. (Ky.) 89 S.W. 265.

In Commonwealth v. Schaffner, 146 Mass. 512, 16 N.E. 280, the defendant was charged with selling impure milk (alleged to contain "annato," a coloring matter injurious to health). A milk inspector was not allowed to testify as to whether the milk was injurious to health, but it was held that the question called for scientific analysis by an expert chemist. In Rogers v. Crain, 30 Tex. 284, a nonexpert witness was not permitted to state whether from all appearances a person was suffering from a disease chronic in its nature.

The testimony offered by appellee as to the water in use in the vicinity and its comparison with the water in controversy was not competent. It was not shown to have been from wells of like depth or stratas of water sand, as the water in question, nor that it contained like ingredients. No analysis of the waters sought to be given in comparison were shown, nor anything other than that they were in the vicinity, and that they were being used. This was not sufficient to render the evidence admissible.

Because the court erred in admitting the evidence complained of, and because the verdict and Judgment are without competent evidence to support same, the judgment is reversed and the cause remanded.

Summaries of

Tyrrell-Combest Realty v. Adams

Court of Civil Appeals of Texas, Beaumont
Feb 16, 1927
291 S.W. 252 (Tex. Civ. App. 1927)
Case details for

Tyrrell-Combest Realty v. Adams

Case Details


Court:Court of Civil Appeals of Texas, Beaumont

Date published: Feb 16, 1927


291 S.W. 252 (Tex. Civ. App. 1927)