Benoit v. Wilson

• Decision Date: 29 April 1953
• Docket Number: No. 10125,10125
• Citation: 258 S.W.2d 134
• Parties: BENOIT v. WILSON et al.
• Court: Texas Court of Appeals

Page 134

258 S.W.2d 134

BENOIT v. WILSON et al.

No. 10125.

Court of Civil Appeals of Texas, Austin.

April 29, 1953.

Rehearing Denied May 20, 1953.

James R. Meyers and Coleman Gay, Austin, for appellant.

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

ARCHER, Chief Justice.

This suit was brought to recover damages for the death of Robert L. Wilson, Jr., who died as a result of burns received in the explosion of a tourist cottage in Austin. The plaintiffs, who are appellees here, were Mr. Wilson's surviving wife, two minor daughters and father. The defendant, who is appellant here, was Phillip Benoit, the owner of the tourist court where the explosion occurred.

A jury trial resulted in a judgment for plaintiffs for $23,274.80, upon findings that defendant's use of a rubber hose connection on the heating stove in the cabin was a proximate cause of the explosion, that defendant was negligent in having placed a cardboard cover over a vent in the ceiling which had been installed for cooling the cabin, and that such negligence was likewise a proximate cause of the explosion. The jury further found that Mr. Wilson did not intentionally permit the gas causing the explosion to escape into the room and was not guilty of contributory negligence in the particulars inquired about in the issues.

This appeal is before this Court on thirteen points assigned as error and are:

'First Point of Error

'The error of the Court in holding that there was evidence to support the jury's answer to Special Issue No. 1 that the use of the rubber hose connection was a proximate cause of the explosion. (Germane to Assignment of Error No. 3.)

'Second Point of Error

'The error of the Court in refusing to instruct a verdict for defendant since there was no evidence that the explosion was proximately caused by his negligence. (Germane to Assignments of Error Nos. 1 and 2.)

'Third Point of Error

'The error of the Court in holding that there was evidence to support the jury's answer to Special Issue No. 5 to the effect that defendant was negligent in covering the ventilator in the ceiling of cabin 22. (Germane to Assignment of Error No. 5.)

'Fourth Point of Error

'The error of the Court in holding that there was evidence to support the jury's answer to Special Issue No. 6 to the effect that the alleged negligence of appellant in covering the ventilator in the ceiling was a proximate cause of the explosion. (Germane to Assignment of Error No. 7.)

'Fifth Point of Error

'The error of the Court in permitting appellees' attorney in his closing argument to the jury to imply that one of appellant's witnesses had been paid to testify as she did. (Germane to Assignment of Error No. 25.)

'Sixth Point of Error

'The error of the Court in permitting appellees' attorney in his closing argument to the jury to state that he had refused to 'buy' the testimony of one of appellant's witnesses and that he concluded that he 'didn't want any part of her' after he checked into her a bit, said attorney having testified as to his conversation with said witness and there being no testimony that she offered to sell her story to him or that he made any investigation of her or that appellant had bribed her. (Germane to Assignment of Error No. 25.)

'Seventh Point of Error

'The error of the Court in permitting appellees' attorney in his opening argument to the jury to state in effect that appellant had attacked the character of appellee Garnitt Wilson Kerley. (Germane to Assignment of Error No. 26.)

'Eighth Point of Error

'The error of the Court in refusing to submit one of defendant's requested special issues as to whether defendant was negligent in using the rubber hose in cabin 22. (Germane to Assignments of Error Nos. 19, 20, 21, 22 and 23.)

'Ninth Point of Error

'The error of the Court in failing to hold as a matter of law that Robert L. Wilson, Jr., was guilty of contributory negligence in failing to ventilate the cabin after smelling the escaping gas. (Germane to Assignments of Error Nos. 10 and 11.)

'Tenth Point of Error

'The error of the Court in failing to hold that the answer of the jury to Special Issue No. 9 that Robert L. Wilson, Jr., did not intentionally cause or permit the gas to escape is so greatly against the preponderance of the evidence as to be clearly wrong. (Germane to Assignment of Error No. 9.)

'Eleventh Point of Error

'The error of the Court in instructing the jury that in determining the amount of damages sustained by the minor plaintiffs by reason of their father's death they could consider not only the amount of money they might reasonably have expected to receive from him, but 'also everything that can be valued in money.' (Gernane to Assignment of Error No. 42.)

'Twelfth Point of Error

'The error of the Court in refusing to submit Defendant's Requested Special Issue No. 1 as to whether some or omission of Robert L. Wilson, Jr., caused the gas to escape and Requested Special Issues Nos. 2 and 3 on negligence and proximate cause in connection therewith. (Germane to Assignments of Error Nos. 16, 17 and 18.)

'Thirteenth Point of Error

'The error of the Court in failing to hold that the verdict of $10,000 in favor of each of the minor plaintiffs was excessive.'

This is the second appeal of his case. The opinion of this Court is reported in 231 S.W.2d 916, and that of the Supreme Court in 239 S.W.2d 792, reversing and remanding the judgment.

A prime inquiry is what caused the escape of the gas which caused the explosion in the tourist cabin?

The jury found that the illegal use of a flexible rubber hose connection by defendant was a proximate cause of the explosion. The use of the type of hose connection by appellant in the tourist cabin is in violation of an Ordinance of the City of Austin. The jury further found that it was negligence for the appellant to maintain the cabin with both the ceiling ventilator and a ventilator in the east wall covered, and that such negligence was a proximate cause of the explosion.

The jury made further findings that the deceased did not intentionally cause or permit the gas to escape, that the deceased did not detect that gas was escaping, but such failure was not negligence, that the deceased was not negligent in failing to open the windows and doors to expel the gas from the cabin, that deceased did not disconnect the hose from the jet at the wall, and that the explosion was not the result of an unavoidable accident.

We will try to determine if there was evidence to support the jury's answer to Special Issue No. 1 which is:

'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 the occasion in question was a proximate cause of the explosion?

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

'The answer was 'Yes.'

The explosion occurred about 7 a. m. on March 23, 1947, in a cabin of a tourist court owned and operated by appellant, in which Mr. Wilson was badly burned from the fire which accompanied the explosion and died from the effects of the burns later in the day.

Immediately after the explosion, and when first seen, Mr. Wilson was heard by witness DeVries screaming while standing at the door of the bathroom. A few minutes later Mr. Wilson made inquiry of witness Landry of what happened.

Soon after Mr. Wilson was taken to the hospital he made a statement to Mr. Lang, a city officer, as follows:

'Q. Did that heater have attached to it a rubber flexible hose? A. It did.

'Q. Immediately upon your leaving the Benoit Motel, did you go to Brackenridge Hospital in an effort to contact Mr. Wilson? A. I did.

'Q. Did you contact him there? A. Yes, sir, I did.

'Q. Where was he at the time? A. He was in the Emergency Room in Brackenridge Hospital receiving treatment.

'Q. On that occasion did he make any statement to you with reference to how the gas was ignited? A. He did.

'Q. What was that? A. He said that he had gotten up and gone to the bathroom, returned and intended to read some. He turned the light on, and as he flipped the switch, the explosion and flash.

'Q. When you talked to Mr. Wilson, Mr. Lang, did he appear to be suffering substantially? A. He was suffering, surely.

'Q. Did he appear to be entirely conscious? A. He did.

'Q. Did he indicate to you that at the time this explosion happened he knew what was going on and that as he talked to you, he remembered it? A. He did.'

This testimony was admitted without objection as a part of the res gestae.

Later in the day further statements were made by Mr. Wilson to his wife, but excluded as not being a part of the res gestae.

The appellant contends that the jury verdict should not be sustained because the explosion might have resulted from some cause other than those found by the jury, and further say that the gas was caused to explode by the turning on of the light switch, and this fact throws no light on the manner in which the gas entered the room and that the only gas fixture in the room was a small heater and that it may be assumed that the gas entered the room through the gas cock affixed to the heater connection. The assertion is further made that there is no contention made that the hose was defective and that the burden was on the plaintiffs to prove that the hose was so loosely attached to the wall cock that the gas in explosive quantities was permitted to escape. The appellant made the further observation even though the use of the hose was one possible explanation of the escape of gas it was not the only one, and that it was possible that the gas escaped because of Mr. Wilson's negligence or his intentional permitting the gas to flow, by loosening the hose connection by stumbling against it in his drunken condition or that he failed to light the gas after turning it on with the intention of lighting it, or that Mr. Wilson could have permitted the gas to escape in order to commit suicide.

The...