Benoit v. Wilson

• Decision Date: 09 May 1951
• Docket Number: No. A-2878,A-2878
• Parties: BENOIT v. WILSON et al.
• Court: Texas Supreme Court

Page 792

239 S.W.2d 792

150 Tex. 273

BENOIT v. WILSON et al.

No. A-2878.

Supreme Court of Texas.

May 9, 1951.

Rehearing Denied June 13, 1951.

Coleman Gay, Austin, for petitioner.

W. M. Zachry and Douglas Boyd, Waco, Jones & Herring, Austin, for respondents.

SMITH, Justice.

This action was instituted by respondents, Garnitt Wilson, Carol Sue Wilson, Phyllis Jean Wilson and Robert L. Wilson, Sr. against the petitioner, Philip Benoit, for damages for the alleged wrongful death of Robert L. Wilson, Jr.

A trial court judgment in favor of petitioner was reversed by the Court of Civil Appeals and rendered in favor of the respondents. 231 S.W.2d 916.

Garnitt Wilson was the surviving wife of Robert L. Wilson, Jr.; Carol Sue and Phyllis Jean Wilson, were the surviving minor children, and Robert L. Wilson, Sr. was the surviving parent.

Prior to the date of trial, Mrs. Wilson married Edwin R. Kerley, and on October 17, 1949, plaintiffs filed their First Amended Original Petition, joining the said Edwin R. Kerley as a party plaintiff. The case proceeded to trial on the same date before the court with the aid of a jury.

Robert L. Wilson, Jr. and his family resided in the city of Waco where he was engaged in the automobile sales business. According to the evidence, it was not unusual for him to leave Waco on business.

On March 22, 1947, in the late afternoon, Wilson registered at the Benoit tourist court in the city of Austin and was assigned Cabin No. 22. Apparently the man was duly sober upon his arrival; however, after having departed in his car, and upon his return to the tourist court some three hours later, it was observed that he appeared to be intoxicated. But, the witnesses admitted that he drove his car and parked it properly in the garage adjacent to his cabin.

The deceased experienced some difficulty in unlocking the door; in fact, he broke off the key. The petitioner then went out and opened the door. Wilson entered the cabin on this occasion about 9:00 P. M., or soon thereafter, and remained there without incident, so far as the record shows, until about 7:00 A.M., March 23, 1947, at which time there was a violent gas explosion in Cabin No. 22. As a result thereof, Mr. Wilson sustained severe shock and burns from which he died about 3:00 P.M. of the same day.

Respondents alleged that Benoit maintained a natural gas heater in Cabin No. 22 and that the stove was connected to the gas pipe by a flexible rubber and fabric hose, the use of which was specifically prohibited by City Ordinance, Rule 9, which reads as follows: 'Gas connections to stoves, ranges, cooking stoves, hot water heaters and other appliances shall be made by rigid metal connections and rubber hose connections or fittings arranged for such connections for gas heaters or similar appliances will not be allowed provided that this rule shall not apply to scientific laboratory appliances such as Bunson burners, et cetera.'

They further alleged that such use was negligence per se and a direct and proximate cause of the explosion and resulting injuries and death of the deceased, Robert L. Wilson, Jr.

This cause was submitted to the jury on special issues, and we herewith set out the issues on proximate cause, negligence, and contributory negligence and the answers of the jury which controlled the trial court in rendering judgment that plaintiff take nothing as against defendant, Benoit.

'Special Issue No. 1.

'Do you find from a preponderance of the evidence that the use by defendant of a flexible rubber and fabric hose to connect the space heater in Cabin No. 22 on March 23, 1947, was a proximate cause of the explosion and resulting injuries and death of the deceased, Robert L. Wilson, Jr.?

'Answer this question 'Yes' or 'No'.

'Answer: Yes'

'Special Issue No. 11.

'Do you find from a preponderance of the evidence that Robert L. Wilson, Jr. disconnected the rubber hose from the gas jet at the wall?

'Answer this question 'Yes' or 'No.'

'Answer: No'

'Special Issue No. 15.

'Do you find from a preponderance of the evidence that Robert L. Wilson, Jr., was in an intoxicated condition during his occupancy of Cabin No. 22 on March 22, 1947, and March 23, 1947?

'Answer 'Yes' or 'No.'

'Answer: Yes

'Special Issue No. 16.

'Do you find from a preponderance of the evidence that the intoxicated condition of Robert L. Wilson, Jr., during his occupancy of Cabin No. 22, if you have so found, was negligence as that term has been herein defined?

'Answer this question 'Yes' or 'No'.

'Answer: Yes

'Special Issue No. 17.

'Do you find from a preponderance of the evidence that such intoxicated condition, if you have so found, was a proximate cause of the explosion and of the resulting injuries to Robert L. Wilson, Jr.?

'Answer this question 'Yes' or 'No.'

'Answer: Yes'.

At the close of all the evidence, the defendant, Benoit, filed his motion for an instructed verdict, alleging that there was no evidence to warrant submitting the issue involved in Special Issue No. 1. The trial court overruled this motion, and later overruled all defense objections to the submission of Special Issue No. 1.

The trial court also overruled all of plaintiffs' objections to the court's charge submitting Special Issues Nos. 15, 16 and 17. Therefore, we are firmly convinced, from an examination of this record, that the findings of the jury in answer to Special Issues Nos. 16 and 17 to the effect that the deceased was negligent by virtue of being intoxicated and that such negligence was a proximate cause of the explosion and resulting death of Wilson was the only reason which prompted the trial court to grant defendant's motion for judgment.

The respondents, plaintiffs below, appealed from this adverse take nothing judgment and directed their entire original brief to the claimed error of the trial court in submitting Special Issues Nos. 15, 16 and 17, and in excluding certain offered testimony.

Petitioner Benoit, appellee in the Court of Civil Appeals, presented in his brief a cross-assignment to the effect that the trial court erred in submitting Special Issue No. 1 to the jury, and his chief argument in support thereof was that there was no evidence warranting the submission of such issue.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the Wilsons, holding, in effect, that Special Issues Nos. 15, 16 and 17 should not have been submitted, and since they were submitted, the trial court should have complied with the plaintiffs' motion and disregarded the answers of the jury and rendered judgment for the plaintiffs on the finding of the jury in answer to Special Issue No. 1 that the use of the flexible rubber and fabric hose to connect the heater was a proximate cause of the explosion and resulting death of Robert L. Wilson, Jr.

Petitioner's first four points attack the finding of the Court of Civil Appeals with reference to the issues submitting the question of the intoxication of deceased; points five, six and seven attack the holding with reference to Special Issue No. 1, and the eighth point raises the question that if the trial court was correctly reversed, the Court of Civil Appeals should have remanded the case in lieu of rendering judgment as it did.

Petitioner's fifth and sixth points of error present the claim that the Court of Civil Appeals erred (a) in holding that there was evidence to support the jury's answer to Special Issue No. 1 to the effect that the use of the rubber hose connection was a proximate cause of the explosion and resulting death of Wilson; (b) in holding that petitioner was not entitled to an instructed verdict on the ground that there was no evidence that the use of the rubber hose connection was a proximate cause of the explosion.

The Court of Civil Appeals, in passing upon these questions, had before it petitioner's cross assignment of error designated as Third Counter Point, which reads as follows: 'The error of the Court in submitting Special Issue No. 1 to the jury and in failing to instruct the jury to return a verdict in appellee's favor.'

The counter point was followed by a statement that appellee (Benoit) excepted to the submission of Special Issue No. 1 'for the reason there is no evidence justifying the submission of such issue to the jury, the record being silent as to any leak, break or defect in the rubber hose in question, and the record further being silent as to any use of said rubber hose during the period of occupancy of Cabin No. 22 by Robert L. Wilson, Jr., and for the further reason that the evidence is insufficient to justify the submission of such issue to the jury. * * *' (Tr., p. 66.)

The petitioner argues that there was no evidence that the hose leaked and there was no evidence that a sufficient amount of gas flowed through the hose to cause the explosion and that there was no proof that any gas escaped from the rubber hose. With this contention we cannot agree. As the Court of Civil Appeals points out 'The presence of gas in the cabin in an amount sufficient to explode is conclusively shown by the fact that it did explode when the light switch was turned on.' (231 S.W.2d 916, 920.)

The petitioner began using the hose in question in November or December, 1945, admittedly in violation of the above quoted ordinance. He used this rubber and fabric hose with rubber tip connections on each end in face of the express provision of the ordinance that 'all gas connections to stoves * * * shall be made by rigid metal connection, and all rubber hose connections or fittings are not allowed * * *.'

The stove and the hose with rubber tip connections were used in the winters of 1945 and 1946, and at the close of winter the stove and hose was stored until cool weather began in the fall of 1946. In the fall of 1946, petitioner again violated the above quoted ordinance by installing the stove with rubber hose connections and admitted that he had made no inspection of the connections...