Brodrick Moving & Storage Co. v. Moorer

• Decision Date: 28 November 1984
• Docket Number: No. 09-82-106,09-82-106
• Citation: 685 S.W.2d 75
• Parties: BRODRICK MOVING & STORAGE COMPANY, et al., Appellants, v. Barbara M. MOORER, et al., Appellees. CV.
• Court: Texas Court of Appeals

Page 75

685 S.W.2d 75

BRODRICK MOVING & STORAGE COMPANY, et al., Appellants, v. Barbara M. MOORER, et al., Appellees.

No. 09-82-106 CV.

Court of Appeals of Texas,

Beaumont.

Nov. 28, 1984.

Rehearing Denied Dec. 17, 1984.

John H. Benckenstein, Beaumont, for appellants.

Jon Burmeister, Nederland, Gerald Riedmueller, Beaumont, for appellees.

OPINION

McNICHOLAS, Justice.

Dennis Brodrick and Alberta Brodrick, Individually, and d/b/a Brodrick Moving & Storage Company, defendants below, herein called "Brodrick", bring this appeal as a result of a judgment entered in favor of Barbara M. Moorer and Patricia Maloney, plaintiffs below, herein called "Moorer" and "Maloney", respectively. Allied Van Lines, herein called "Allied", and Eighmie Moving & Storage Company, herein called "Eighmie", were named defendants in the lower court, but are not parties to this appeal.

Moorer and Maloney, as plaintiffs, brought suit against Allied, Eighmie and Brodrick, as defendants, for damages to their household goods caused by a fire in Brodrick's warehouse in Port Arthur, Texas.

Moorer selected Allied to move her furniture from Poughkeepsie, New York to Port Arthur, Texas because Allied had storage facilities in Port Arthur, which was Brodrick, and engaged Eighmie, also an Allied agent, to transport her goods to Port Arthur. Maloney engaged an Allied agent in Temple, Texas to move her goods to Port Arthur where said goods were stored in Brodrick's warehouse, the local agent for Allied.

In Moorer's bill of lading, she valued her goods at $16,500.00 which she admits was correct and signed by her. The declared valuation of Maloney's furniture was $5,000.00.

The jury exonerated Allied and Eighmie of all acts of negligence, but found that Brodrick was negligent. However, in answer to special issue no. 20, the jury found "that by representing to Allied and its agents that her goods did not exceed $16,500.00 in value, Mrs. Moorer is now estopped to claim a higher sum as the true value of the shipment"; and, in answer to special issue no. 21, the jury found Maloney was likewise estopped from claiming more than $5,000.00 for the value of her goods.

The trial court, after disregarding the findings of the jury to special issues nos. 20 and 21, rendered judgment, based on the jury's verdict, that Moorer recover $40,000.00 against Brodrick, that Maloney recover of Brodrick $12,500.00, that Moorer and Maloney recover nothing of Allied and Eighmie, that Brodrick recover of Allied $21,500.00, that Moorer and Maloney recover their costs against Brodrick, and that Brodrick recover its costs against Allied.

Brodrick's first two points of error are that the trial court erred (1) in disregarding the jury's findings of special issues nos. 20 and 21 and (2) in rendering judgment against Brodrick in favor of Moorer in the amount of $40,000.00 and in favor of Maloney in the amount of $12,500.00, because "the released valuation of $16,500.00 and $5,000.00 continues although the transportation is completed and the goods are held strictly as a warehouseman."

The first issue confronting us is whether the finding of negligence on the part of Brodrick precludes the entry of a judgment favorable to Moorer and Maloney in view of the jury's finding of estoppel. Estoppel is one of the defenses specifically mentioned in TEX.R.CIV.P. 94 which requires an affirmative defense to be specially pleaded.

A careful examination of Brodrick's pleadings fail to disclose that estoppel was pleaded, only that of contributory negligence, and since Brodrick requested no issue on estoppel, such defense may well have been waived. Missouri Pacific Railroad Co. v. Phelan Company, 444 S.W.2d 832 (Tex.Civ.App.--Beaumont 1969, writ dism'd); TEX.R.CIV.P. 272. However, because the jury found the defense of estoppel applicable to Allied and Eighmie, as well as their "agents", and further found that Brodrick was an agent of Allied, Brodrick may well argue that a specific affirmative pleading of estoppel on Brodrick's part was not necessary. Although we do not believe that Brodrick is entitled to the coattail effect of Allied's apparent affirmative pleadings, Bowling v. City of El Paso, 525 S.W.2d 539 (Tex.Civ.App.--El Paso 1975) writ ref'd n.r.e. per curium 529 S.W.2d 509 (Tex.1975), which pleadings we do not have in the record before us, we find it unnecessary to pass directly on this point because the findings of negligence on the part of Brodrick overcomes any affirmative defense of estoppel.

One may not predicate an estoppel in his favor to shield himself from his own act or negligence, nor will equity relieve a person from his erroneous acts or omissions resulting from his own negligence. Adams Express Company v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913); El Paso National Bank v. Southwest Numismatic Investment Group, Ltd., 548 S.W.2d 942 (Tex.Civ.App.--El Paso 1977, no writ); City of Tyler v. Bruck, 267 S.W.2d 429 (Tex.Civ.App.--Texarkana 1954, writ ref'd n.r.e.); Coker v. Benjamin, 83 S.W.2d 373 (Tex.Civ.App.--Beaumont 1935, no writ). Because the recovery was based upon the jury's finding of negligence, the limitation of liability relied on by Brodrick is not applicable, and the trial court properly disregarded the jury's findings to special issues nos. 20 and 21 with respect to Brodrick. Appellants first two points of error are overruled.

Brodrick's third and fourth points of error are that there is no evidence to support the findings of negligence and that the finding of negligence in one or more respects was against the great and overwhelming weight of the evidence so as to be clearly wrong and unjust.

The negligence issue, set out in the margin, which was submitted to the jury without objection, permitted the jury to find from a preponderance of the evidence that Brodrick was negligent in any of...