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295 SOUTH WESTERN REPORTER
a jury upon another trial of the case. In our
view, it is immaterial to the decision of this
case whether or not the requested charge
was legally correct in all particulars. It was
sufficient to direct the attention of the trial
judge to the particular defensive matters
relied upon by appellants ; and, since the
court had wholly failed to submit the issue
to the jury in his main charge, the request-
ed charge called his attention to such omis-
sion, and it thereby became his duty to pre-
pare and submit to the jury a correct charge
embodying the issue suggested. This rule is
well established by an unbroken line of deci-
sions in our state. Authorities almost with-
out number could be cited in support there-
of, but the following will suffice: G. C. & S.
F. Ry. Co. v. Cusenberry, 86 Tex. 525, 26 S.
W. 43; Neville v. Mitchell, 28 Tex. Civ. App.
89, 66 S. W. 579; G. C. & S. F. Ry. Co. v.
Mangham, 29 Tex. Civ. App. 486, 69 S. W.
80; Olds Motor Works v. Churchhill (Tex.
Civ. App.) 175 S. W. 786; Brady v. McCuis-
tion (Tex. Civ. App.) 210 S. W. 816; Roberts
v. Houston Motor Car Co. (Tex. Civ. App.)
188 S. W. 257; Texas Refining Co. v. Alex-
ander (Tex. Civ. App.) 202 S. W. 131.
Appellees rely upon such cases as Wells
Fargo & Co. v. Benjamin, 107 Tex. 331, 179
S. W. 513, and Railway Co. v. Mangham, 29
Tex. Civ. App. 486, 69 S. W. 80. They cite
other cases, but these illustrate the character
of decision. Those decisions are based up-
on the well-established rule that, where the
court has made a correct general presentation
of the issue, if the party desires a fuller
charge on that issue, he must request a cor-
rect one, and, if the requested charge is er-
roneous, the court should refuse it, and it
does not constitute error to do so. That rule
has no application to this case, because the
court wholly failed to give any general charge
upon the issue.
The case of Railway Co. v. Mangham, su-
psra, relied upon by appellees, clearly states
the rule in this language:
"It is well settled that, where the court fails
to charge on an issue and a special charge is
requested, though incorrect, but sufficient to
call the court's attention to the omission, the
court should submit a proper instruction on
t hat issue."
That is exactly the question presented in
this case.
Appellants' assignment, complaining of the
failure of the court to submit an issue of un
avoidable accident, is therefore sustained. r
[5] The measure of damages adopted by th n
trial court was the fair, reasonable, cas t
market value of the well immediately prio e
to the explosion. Appellants insist that this; t
is an incorrect measure, citing the case of c
,onnan v. Pennsylvania Torpedo Co., 26 Pa. h
Super. Ct. 324. a
That case aouounces this rule: u
"If the damage could be repaired, then the
measure of damages would be the cost of that
repair. But if the cost of the repair would be
more than the value of the property, or if a
new well could be drilled more cheaply than
this one could be repaired or cleaned out. then
of course the party should not estimate his
damages by the more expensive method; Le
should take that which is cheapest. If it is
cheaper to drill a new well he should do that.
If it is cheaper to abandon the well altogether
then he should abandon it, and then would be
entitled to charge the party only with the mar-
ket price, what it was worth in the market.
* * * If it was utterly destroyed, or de-
stroyed so that a repair would cost more than
the digging of a new well and the digging of a
new well would cost more than it would be
worth, then neither of those things should be
done, and it would come back to the question of
the value of the well. The ordinary vahe
would be the market value at that time."
Since actual damages are compensatory and
not punitive, this rule is manifestly just
where the cost of reproduction would exceed
the value of the well, for the real damaars
suffered by the plaintiff would be the value
of the property destroyed. regardless of how
much it may have cost 1im. The difficulty
arises in its application t t a case where toe
value of the well exceeds the cost of repro-
ducing it. This difficulty arises by reason of
the fact that there is no way to definitely de-
termine that the well could be reproduced 1 ;
drilling another one. In that case all of tle
facts, conditions, and surroundings throw;
light upon the question should be put in evi-
dence and the issue as to whether or not the
well could be reproduced determined by the
jury, or by the court when trial is not before
a jury. There was some evidence- in this
record that salt water filled this well after
the explosion, and that salt water would
permeate a producing oil sand, driving the
oil before it. That is one of the facts prop-
erly to be considered by the jury in deter
mining whether or not the well could hr.
been reproduced. Other facts may be aval
able upon another trial.
[6] We suggest that upon another trial r
this case evidence should be admitted and th
jury called upon to determine in answer to
proper special issue whether or not the well
could have been reproduced by drilling a.-
other one. If so, the correct measure of dam-
ages would be the cost of reproducing and
equipping same in the manner that this weld
vas equipped, less the value of any salvage
ealized by appellees, provided the cost would
not exceed the value of the well. Should
he cost of reproduction as found by the jury
exceed the value of the well, as found by
hem, or should the jury determine upon
ofupetent testimony that the well could ntt
ave been reproduced, the damages should be
ssessed at the reasonable, cash market val-
.e of the well as equipped immediately pe-
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