Bray v. Texas Mercantile, 6498

• Decision Date: 02 May 1955
• Docket Number: No. 6498,6498
• Citation: 279 S.W.2d 623
• Parties: Clyde E. BRAY et al., Appellants, v. TEXAS MERCANTILE, Inc., Appellee.
• Court: Texas Court of Appeals

Page 623

279 S.W.2d 623

Clyde E. BRAY et al., Appellants, v. TEXAS MERCANTILE, Inc., Appellee.

No. 6498.

Court of Civil Appeals of Texas, Amarillo.

May 2, 1955.

Rehearing Denied June 13, 1955.

Singleton & Trulove, Amarillo, Black & Stayton, Austin, for appellants.

Gibson, Ochsner, Harlan, Kinney & Morris, Monning & Monning, Amarillo, for appellee.

MARTIN, Justice.

Appellee, Texas Mercantile, Inc., as a tenant, occupied a building destroyed by fire of undetermined origin. The fire spread into the adjoining building owned by Clyde E. Bray and occupied by Bray and his tenants. Bray, his tenants and certain insurance companies are appellants herein.

The appellants pleaded that appellee was guilty of nine separate acts of negligence. An issue as to each act of negligence pleaded was duly submitted to the jury by the trial court. In addition to these issues as to the alleged negligence of appellee, issues were submitted as to whether the appellant, Bray 'failed to construct a substantial fire wall between the Bray Building and the Texas Mercantile warehouse building'. All of the issues submitted as to the alleged negligence of the appellee herein as well as to the negligence of Bray were answered favorably to the appellee. Upon the jury verdict, the trial court rendered judgment for the appellee and appellant perfected an appeal and assigns ten points of error. The points will not be detailed herein as to do so would unnecessarily lengthen this opinion. The issues will be discussed and ruled on-particularly those issues on which appellant has placed the most stress. A detailed discussion of the principal issues is also presented in a supplemental brief filed in the cause.

Appellants assert that the trial court failed to submit the doctrine of res ipsa loquitur. Since the record reveals no single act of negligence on the part of the appellee and the fire in issue was of undetermined origin as revealed by the uncontroverted evidence, the trial court did not err in refusing to submit an issue as to the doctrine of res ipsa loquitur. Davis v. Castile, Tex.Com.App., 257 S.W. 870; National Hotel Co. v. Motley, Tex.Civ.App., 123 S.W.2d 461; Gulf Refining Co. v. Delavan, 5 Cir., 203 F.2d 769; 30-B Tex.Jur. 392; Ward v. Wallace, Tex.Civ.App., 175 S.W.2d 611.

Appellants' principal contention as to error of the trial court is that the court accepted the verdict of the jury containing three irreconcilable, conflicting, separate findings of sole proximate cause. The supplemental brief also discusses this issue in detail. As admitted in appellants' supplemental brief, it is difficult to ascertain the exact nature of appellants' complaint as set forth in their original brief as to the error in submission of the issues or as to the supposed conflict in the findings of proximate cause. An examination of the record reveals no error of any materiality as to appellants' contention that the jury verdict in answer to Issues 9, 10 and 11 contains 'three (3) irreconcilable, conflicting, separate findings of sole proximate cause'. The jury's answer to Issue No. 9 is a finding that Bray failed to construct a substantial fire wall between the Bray Building and the Texas Mercantile, Inc. warehouse. The jury in answer to Issue No. 10 found that Bray constructed the Bray Building, or a part thereof, out of materials nonresistant to fire. Issue No. 11 is merely a combination of the two elements shown in Issues No. 9 and 10. Issue No. 10 as to whether Bray constructed the building, or a part thereof, out of materials nonresistant to fire is merely an evidentiary issue on the same subject matter as Issue No. 9. A substantial fire wall would necessarily be one constructed of material resistant to fire. Therefore, Issues No. 9, 10 and 11 deal with the same subject and consist merely of one ultimate issue and evidentiary issues on the same subject and are not irreconcilable and conflicting. Even appellants admit in their supplemental brief that 'The other special issues of which we are here complaining were of the same import.' Whether the failure of Bray to construct a firewall constituted negligence is not material to this cause of action since the uncontroverted evidence established that the failure of Bray to erect a substantial fire wall between the buildings was the sole proximate cause of the damage to appellants. 65 C.J.S., Negligence, § 111, p. 692. Further, when the jury absolved the appellee of any negligence, Issues 9, 10 and 11 as to appellant Bray's contributory negligence became immaterial. Smith v. Morgan, Tex.Civ.App., 235 S.W.2d 938, Syl. 7; Vol. 36A, Texas Digest, Trial, k356(5).

A supplemental brief was filed in the cause by the Honorable W. N. Stokes, a retired justice of this Court. This brief discusses principally the above issue. An examination of such brief reveals that appellants seek a reversal of the cause on the proposition that the submission of the issues as to the failure to erect a fire wall led the jury to believe that a duty rested upon Bray to erect a fire wall and that thereby the members of the jury were so influenced and prejudiced as to find for appellee on the eight separate issues submitted as to whether appellee was negligent. On this issue, an examination of the record of some four hundred pages reveals that the jury returned the only correct verdict possible under the evidence presented in the cause. The jury was not prejudiced but was clearly motivated by the evidence which wholly supported appellee's cause. If the record is not wholly devoid of any evidence contrary to the jury findings, it is certainly a correct proposition that the jury verdict is supported by the overwhelming weight and preponderance of the evidence in this record.

The supplemental brief states that the evidence reveals the wall in issue was of brick and tile construction. This reference was to the wall in issue that crumbled and permitted the fire to enter the Bray Building. An examination of Plaintiffs' Exhibit 2-C, appellants here, does reveal that the wall in issue between appellant Bray's building and the building rented by appellee was of tile and brick construction as testified to by Bray. However, it is likewise apparent from the same exhibit that the bottom portion of the wall consists of several courses of hollow tile with courses of brick on the top of such tile sections. The supplemental brief wholly overlooks the fact that Ray Parks who was in partnership with Bray at the time of the erection of the Bray Building testified as to the type of construction of the...