                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-13-00174-CV

TOM MADDUX, INDIVIDUALLY AND DBA
LOST PRAIRIE CYCLES; AKA THOMAS EARL MADDUX,
                                     Appellant
v.

MICHAEL D. REID,
                                                        Appellee


                         From the 87th District Court
                          Limestone County, Texas
                           Trial Court No. 29,549-A


                        MEMORANDUM OPINION


      Michael D. Reid took his 2008 Firefighter’s Edition Harley Davidson motorcycle

to Tom Maddux at his place of business, Lost Prairie Cycles, to have the engine

repaired. When it was repaired, Maddux called Reid to come pick it up. Reid did not

immediately pick up the motorcycle. By the time he remembered about picking it up,

the motorcycle had been damaged by a fire started by Maddux in his pasture which

spread to the motorcycle shop and Reid’s motorcycle. Reid sued Maddux for the
market value of the motorcycle. After a jury trial, Reid was awarded $19,000 for the

motorcycle. Because we find no error, we affirm the trial court’s judgment.

        Maddux represented himself at trial and is representing himself in this appeal. 1

At three distinct places in his brief, he sets out:             1) specific points for review, 2)

questions of fact, and 3) questions of law. These are set out, verbatim, below.

                                Points Presented for Review:
        1. Whether Appellant, under the agreed Contract was liable to Appellee
        for additional care of the Motorcycle beyond the three days agreed on by
        the Contracted Parties.
        2. Whether Appellee breached the agreed verbal Contract.
        3. Whether the $19,000 arrived at by the Court is justified by the facts and
        law presented at Trial.
        4. Whether the Trial Court can provide an award in opposition to Texas
        Statutes and Codes CHAPTER 41. DAMAGES.

(Ap. Br. pg. 6).

                                   QUESTIONS OF FACT
        1. Did Appellee have a verbal contract with Appellant?
        2. Did Appellee leave his supposed motorcycle at LOST PRAIRIE CYCLES
        beyond the agreed time?
        3. Is Appellee the owner of the damaged motorcycle?
        4. Did Appellant fulfill his contract obligation with Appellee?
        5. Did Appellant receive any consideration from Appellee for the work
        done on the motorcycle?
        6. Did Appellee present proof of value for the damaged motorcycle?
        7. Is Appellee continuing to occupy space on Appellant's land?
        8. Is Appellee attempting to collect twice for the same loss since Appellee
        was compensated for the loss of the motorcycle in question by Appellee's
        Insurance Company (Progressive)?

1 To some extent, Maddux’s brief evidences a belief that we will be conducting something akin to a new
trial rather than a review of the previously conducted trial for legal error that impacted the judgment.
Some of his arguments, which may have been appropriate for consideration in the trial court cannot be
addressed on appeal. We have endeavored to address those issues raised by Maddux which are
appropriate for appeal in this opinion

Maddux v. Reid                                                                                   Page 2
(Ap. Br. pg. 18).

                                 QUESTIONS OF LAW
       1. Was Appellant liable for abandoned property, past the agreed upon
       verbal contract date, which was damaged in the accidental fire?
       2. Was Appellant liable for Appellees's (sic) failure to retrieve his alleged
       property timely?
       3. Was Appellant under contract with Appellee at the time the accidental
       fire consumed the Motorcycle?
       4. Does Appellant deserve compensation for the space being used by the
       damaged motorcycle?
       5. Is Appellee being indemnified for the same motorcycle from
       Progressive Casualty Insurance Company and Appellant Thomas Earl?

(Ap. Br. pg. 19).

Some of the points and questions relate to each other. Thus, we will try to group, as

best we can, the related items to determine Maddux’s appeal.

BAILMENT

       To start, we combine the first two points, whether Maddux, under an agreed

contract was liable to Reid for additional care of the motorcycle beyond the three days

alleged to have been agreed on by the parties and whether Reid breached the alleged

verbal contract, with Maddux’s first four questions of fact and first three questions of

law. Based on the arguments in his brief, it appears Maddux contends that he and Reid

had a verbal agreement that Reid would pick up the motorcycle within three days after

he was notified that it was repaired; that Reid breached the agreement by not picking

up the motorcycle in that time, and therefore, Maddux was not liable to Reid for the

damage to the motorcycle.
Maddux v. Reid                                                                         Page 3
       This was a bailment case. A bailment is the “delivery of personal property by

one person (the bailor) to another (the bailee) who holds the property for a certain

purpose under an express or implied-in-fact contract.” Lopez v. Lopez, 271 S.W.3d 780,

788 n.6 (Tex. App.—Waco 2008, no pet.) (quoting BLACK'S LAW DICTIONARY 151-52

(8th ed. 2004)). The elements of a bailment are: (1) the delivery of personal property by

one person to another in trust for a specific purpose; (2) acceptance of such delivery; (3)

an express or implied contract that the trust will be carried out; and (4) an

understanding under the terms of the contract that the property will be returned to the

transferor (bailor) or dealt with as the transferor directs. Lopez, 271 S.W.3d at 788 n.6;

Small v. Small, 216 S.W.3d 872, 877-78 (Tex. App.—Beaumont 2007, pet. denied).

       In this case, Reid, the bailor, delivered the motorcycle to Maddux, the bailee, for

the specific purpose of diagnosing and repairing the motorcycle’s engine or other

mechanical problems. Maddux accepted the motorcycle for that purpose. When the

repairs were made, the parties understood that Maddux would notify Reid, Reid would

pay for the repairs, and the motorcycle would be returned to Reid. Under these facts,

the elements of a bailment have been met.

       The bailment relationship is governed by principles of negligence. Bank One,

Tex., N.A. v. Stewart, 967 S.W.2d 419, 432 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied); Carter v. Flowers, No. 02-10-00226-CV, 2011 Tex. App. LEXIS 7829, *4 (Tex.

App.—Fort Worth Sept. 29, 2011, no pet.) (mem. op.). That is, the bailment contract


Maddux v. Reid                                                                       Page 4
gives rise to a duty on the part of the bailee, and, in a case such as this of a bailment for

mutual benefit of the parties,2 that duty is to take reasonable care in safekeeping the

property that is the subject matter of the bailment. Trammell v. Whitlock, 242 S.W.2d 157,

159 (1951); Ampco Auto Parks, Inc. v. Williams, 517 S.W.2d 401, 403 (Tex. Civ. App.—

Dallas 1974, writ ref'd n.r.e.). See Carter, 2011 Tex. App. LEXIS 7829 at *4. The bailee has

an obligation to return the property to the bailor when the purpose of the bailment has

ended or to keep the property until the bailor reclaims it. English v. Dhane, 156 Tex. 231,

233, 294 S.W.2d 709, 711 (1956); Allright Auto Parks, Inc. v. Moore, 560 S.W.2d 129, 130

(Tex. Civ. App.—San Antonio 1977, writ ref'd n.r.e.); see also D & D Assocs., Inc. v. Sierra

Plastics, Inc., 570 S.W.2d 205, 206 (Tex. Civ. App.—Waco 1978, no writ) ("[E]very

bailment contract contemplates return of the property bailed, either in the same or

altered form, or its delivery to a third person with the express or implied consent of the

bailor."); see also Carter, 2011 Tex. App. LEXIS 7829 at *4.

        Once the bailor proves that the property was not returned, a rebuttable

presumption arises of negligence by the bailee in the performance of his duties,

establishing a prima facie case of liability against the bailee. Buchanan v. Byrd, 519

S.W.2d 841, 843 (Tex. 1975); Sanroc Co. International v. Roadrunner Transp., Inc., 596

S.W.2d 320, 322 (Tex. App.—Houston [1st Dist.] 1980, no pet.). Once a prima facie case



2Andrews v. Allen, 724 S.W.2d 893, 895-96 (Tex. App.—Austin 1987, no writ) (defining a bailment for
mutual benefit as one in which the bailment was created as an incident of a business in which the bailee
makes a profit).

Maddux v. Reid                                                                                   Page 5
is presented and the fact of negligence is presumed, the bailee has the duty to produce

evidence of some other cause of loss or injury not due to his negligence. Trammell v.

Whitlock, 242 S.W.2d 157, 160 (Tex. 1951); Prime Prods. v. S.S.I. Plastics, 97 S.W.3d 631,

635 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The presumption may not be

overcome by the bailee by proving loss by fire or theft. Sanroc Co. International, Inc., 596

S.W.2d at 322.

       Reid proved that the motorcycle was not returned because it had been damaged

in a fire. Thus, he presumptively proved negligence. The burden shifted to Maddux to

show some other cause of loss or injury that was not due to his own negligence. The

evidence showed that Maddux started a fire in his pasture, lost control of it, and the

motorcycle was damaged due to the fire. No other reason for the loss was presented.

Based on this evidence, the presumption of Maddux’s negligence was not overcome.

       Maddux contends Reid’s failure to retrieve the motorcycle within three days

after notification of its repair, relieves Maddux of his obligation to protect or care for the

motorcycle. But limitations of liability must be called to the attention of the bailor

before they may become part of the bailment contract. Allright, Inc. v. Elledge, 515

S.W.2d 266, 268 (Tex. 1974). There was no evidence of a three day pick-up requirement

that was brought to Reid’s attention. Thus, Maddux’s liability was not limited.

       Accordingly, based on the reasons above, Maddux’s first two points of review,

first four questions of fact, and first three questions of law are overruled.


Maddux v. Reid                                                                          Page 6
INSURANCE PROCEEDS

       In Maddux’s third point, he complains that the $19,000 award to Reid was

excessive because Reid had been paid by his insurance company for a previous accident

with the motorcycle and had possibly paid off his loan on the motorcycle with the

insurance proceeds. He also contends that because Reid was poised to make a profit,

the extra amount awarded must have been for other damages that were not presented

to the jury. This point seems to relate to Maddux’s eighth question of fact and fifth

question of law.

       To the extent Maddux is arguing that Reid committed fraud, even though fraud

was raised in a counter-claim a few days before trial, no issue of fraud was submitted to

the jury and Maddux did not ask for it to be submitted. Thus, error, if any, is not

preserved. See TEX. R. APP. P. 33.1; TEX. R. CIV. P. 274. To the extent Maddux is arguing

about whether Reid’s award should be reduced due to prior insurance payments, the

collateral source rule precludes any reduction in a tortfeasor's liability because of

benefits received by the plaintiff from someone else. Haygood v. De Escabedo, 356 S.W.3d

390, 394 (Tex. 2011). Whether Reid is receiving a windfall or whether Reid is required

to reimburse Reid’s insurance company, is between Reid and the insurance company. It

is not relevant to the issue of Maddux’s liability to Reid. Further, to the extent Maddux

is arguing that additional damages questions should have been submitted to the jury,




Maddux v. Reid                                                                     Page 7
he did not request any additional questions and this argument is not preserved. See

TEX. R. APP. P. 33.1; TEX. R. CIV. P. 274.

       Maddux’s third point, eighth question of fact, and fifth question of law are

overruled.

JURY AWARD

       In his last point for review, Maddux complains that liability was determined by

the trial court and not the jury; market value evidence could not be presented by the

owner of the property; the award by the jury exceeded the amount presented to the trial

court; and other types of damages were not submitted to the jury. This point appears to

relate to his sixth question of fact.

       Although the question of liability was not submitted to the jury, Maddux did not

object to its omission. And, as stated in response to Maddux’s first two points, Maddux

did not rebut the presumption of negligence. Thus, liability was established. Further,

an omitted element shall be deemed found in a manner as to support the judgment.

TEX. R. CIV. P. 279. Thus, liability in this case is deemed found.

       As to Maddux’s damages complaints, the standard for measuring damage to

personal property is the difference in its market value immediately before and

immediately after the injury, at the place where the damage occurred.            Thomas v.

Oldham, 895 S.W.2d 352, 359 (Tex. 1995). An owner may testify to the value of his or her

own property if the testimony relates to the market value of the property. Id.


Maddux v. Reid                                                                       Page 8
        Reid testified, as he may, to the market value of the motorcycle. It was a special

edition firefighter model and he paid $27,500 for it. Although the exact amount is

unclear, Reid believed he still owed $9,000 or $11,000 on the motorcycle after the fire.

He paid off the debt owed on the motorcycle right before trial. Further, although before

the fire the motorcycle had been “laid over” in a grassy ditch to avoid a collision and

was in the process of being repaired, in Reid’s opinion, the reasonable cash market

value of the motorcycle in Limestone County when he dropped it off with Maddux was

$25,000 or so. He opined that at the time of the trial, the same motorcycle could be

purchased for $22,000 to $23,000.

        Maddux testified that he would not buy the motorcycle due to all the parts that

he said were missing from the motorcycle, at any price, after he had repaired it.3

Maddux further testified that after the fire, he would give about $1,000 for it. He also

stated that the normal reduction in value for a motorcycle after the first year is about 25

percent. Reid testified he had no idea what the motorcycle was worth now, after the

fire, because Maddux would not let him see it or retrieve it. He stated he would have to

rely on Maddux’s testimony that it was worth $1,000 after the fire.

        Considering the testimony regarding the value of the motorcycle, the amount

awarded by the jury is supported by the evidence. See Callejo v. Brazos Electric Power



3Reid testified that the seat, the exhaust pipes, the muffler and the “tour package” still needed to be
added to the motorcycle. Reid had these parts, other than the tour package, in his possession. After the
motorcycle was destroyed in the fire, he returned the parts.

Maddux v. Reid                                                                                   Page 9
Cooperative, Inc., 755 S.W.2d 73, 75-76 (Tex. 1988). Maddux’s fourth point for review and

sixth question of fact are overruled.

COMPENSATION

       Although no corresponding point for review is raised, Maddux also contends in

his seventh question of fact and fourth question of law that Reid’s motorcycle is still on

his premises and that Maddux deserves compensation for the space being used by the

motorcycle. In his fifth question of fact, Maddux further requests compensation for the

work he performed on Reid’s motorcycle. No issue regarding compensation of any

kind was submitted to the jury, and Maddux did not ask for it to be submitted. Thus,

error, if any, is not preserved. See TEX. R. APP. P. 33.1; TEX. R. CIV. P. 274.   Maddux’s

fifth and seventh questions of fact and fourth question of law are overruled.

CONCLUSION

       Having overruled each of Maddux’s points for review, questions of fact, and

questions of law, we affirm the trial court’s judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 18, 2015
[CV06]


Maddux v. Reid                                                                      Page 10
