Brown v. Dellinger

• Decision Date: 06 March 1962
• Docket Number: No. 7387,7387
• Citation: 355 S.W.2d 742
• Parties: George Thompson BROWN and Dan Christian Woldert, Jr., Appellants, v. John L. DELLINGER, Appellee.
• Court: Texas Court of Appeals

Page 742

355 S.W.2d 742

George Thompson BROWN and Dan Christian Woldert, Jr., Appellants, v. John L. DELLINGER, Appellee.

No. 7387.

Court of Civil Appeals of Texas, Texarkana.

March 6, 1962.

Rehearing Denied April 3, 1962.

Leachman, Gardere, Akin & Porter, Thompson, Knight, Wright & Simmons, Dallas, Willis Jarrel, Tyler, for appellants.

Johnson, Hathaway & Jackson, Tyler, for appellee.

FANNING, Justice.

John L. Dellinger sued George Thompson Brown and Dan Christian Woldert, Jr., minors, (who were represented by their respective guardians ad litem) to recover damages to his house and furnishings in a fire which occurred on January 23, 1959. Plaintiff Dellinger filed an amended motion for partial summary judgment on the issue of liability, contending that the minor defendants were liable as joint trespassers as a matter of law, and were also guilty as a matter of law of the commission of an in tentional tort of invading or interfering with vested property rights of the plaintiff. Defendants also filed motions for summary judgment. Certain stipulations were made and certain depositions were placed in the record by the parties. The trial court sustained plaintiffs' amended motion for partial summary judgment and denied defendants' motions. The parties then agreed, without prejudice to any future trial, to a stipulation as to the amount of damages. The trial court entered a final judgment in favor of plaintiff for the amount of the stipulated damages with certain stated interest against the two minor defendants. Defendants have appealed.

The judgment of the trial court is affirmed.

The minor appellants on January 23, 1959, the date of the fire, were between 7 and 8 years of age. The appellant Brown was born in September, 1951, and appellant Woldert was born in October, 1951. They were both in the first grade in school and were normal boys of at least average or perhaps above average intelligence for their ages--one of the boys was apparently an 'A' or near 'A' student and the other one was not rated that high as a student but was apparently at least an average or perhaps above average student. They had both been warned about playing with matches. They lived in the neighborhood where the Dellinger home was located and they had played in and on the Dellingers' yard and had been in the house of the Dellingers at times when the Dellingers were at home. There is also some evidence in the record that they had played in the Dellingers' garage before the fire. There is also evidence in the record that the two minor appellants were present when Mr. Dellinger burned leaves on an adjacent lot and assisted him in doing so, with Mr. Dellinger cautioning them to keep back from the fire.

On January 23, 1959, the date of the fire, appellee Dellinger and wife were out of town. Their garage was attached to their residence. Before leaving home they had placed a canvas curtain or tarpaulin which closed the entrance to their garage, weighting same down with boards and fastening same down with fasteners. Appellant minors gained entrance to the garage and discovered therein a small portable charcoal grill which they moved within a short distance of the inside of the curtain hanging over the entrance to appellee's garage. The morning was a cold morning, and appellants stated that they wanted to build a fire to get warm. Appellants then secured some leaves from a leaf pile outside of the garage, filled the grill with leaves, and the minor Woldert then went to his home which is located nearby, secured some matches at his home and returned to the garage. Whereupon the appellants both proceeded to ignite the fire. Appellants experienced some difficulty in igniting the fire, and the appellant Woldert made two more additional trips to his home for the purpose of securing more matches with which to continue appellants' efforts in building a fire in the grill in the garage. The appellants were finally successful in their joint efforts in igniting the leaves in the grill and turned around and stood with their backs toward the fire for some interval (warming themselves), after which they discoverd that the canvas curtain had caught fire. Appellants observed the curtain to flap in the wind and appellant Brown stated that perhaps the wind either blew the curtain agaisnt the fire or blew the fire over to the curtain. Appellants were unable to extinguish the fire, but got out of the garage safely. The fire rapidly spread to the remainder of the house causing substantial damage to the garage, house and contents thereof, in excess of $28,000.00.

It was admitted that on no occasion did the appellee or his wife conduct themselves individually or together in such a manner as to cause the appellants to have reason or cause to believe that either of said appellants had any implied authority to build a fire in the grill which was ignited by appellants on January 23, 1959.

On no occasions were appellants ever given express authority to play with or build a fire in the subject charcoal grill or play with matches in appellee's garage, nor did appellee or his wife ever conduct themselves so as to give appellants reason or cause to believe that they had implied authority to start or build a fire any place on appellee's premises, or to play with fire or matches in appellee's garage, or to build a fire in appellee's grill in appellee's garage.

Neither appellee nor his wife in any manner consented to the lighting of the fire in question.

Appellee never permitted appellants to play with fire or build a fire and neither of appellants had ever built a fire or played with fire in appellee's garage before appellants ignited the fire on January 23, 1959, when appellee and his wife were away from home in Austin. Appellee had never used the charcoal grill in the presence of the appellants. It also appears that no other children, to the knowledge of appellee and his wife, had ever played with fire or matches anywhere on the premises of the appellee, except on several occasions when appellee was raking and burning leaves on an adjacent lot when appellants attempted to throw (or threw) some leaves on the fire, or would get too close, and it appears from the uncontradicted testimony of appellee that on each occasion appellee would instruct them to desist and get back from the fire.

There was no other fire near the curtain or garage, and the evidence is conclusive that the fire ignited in the grill, spread to or reached the canvas curtain, and from there to the garage, house and contents of the house.

The primary meaning of the term 'trespass' is any act which transcends or passes beyond the bounds of legal right. Texas courts ahve observed that the gist of a trespass is the doing of an unlawful act in an unlawful manner, to the injury to the person or property of another. The term 'trespass' is also applied to an act which results in injury to or destruction of personalty and to an act which consists in an entry upon or injury to real estate. 41-A, Tex.Jur., Trespass, Sec. 2, p. 464-5.

Sections 8, 9 and 10, Trespass, 41-A Tex.Jur., p. 471-2, read as follows:

'Sec. 8.-The commission of a trespass necessarily involves an actor an injury or damage done by him to the person or property of another resulting from his action. To constitute a trespass, the injury must result from an affirmative act of the person committing the same. The trespass is the misfeasance or wrongful act, and the injury is the result of the trespass rather than a part of it.

'Sec. 9. Intent.--Regardless of the motive which prompted the act of the defendant, liability is incurred. Thus his liability for actual damages which have resulted from his conduct is not affected by an honest belief that he was the owner of the property.

'Sec. 10. Negligence.--Where actual or material injury or damage has resulted from a trespass, the trespasser is held to be liable without reference to 'negligence' or the exercise of 'care'; a recovery may not be defeated on the ground that the harm done was not a foreseeable consequence of the defendnat's conduct. An issue as to 'negligence' on his part should not be submitted to the jury, the only question to be resolved being the amount of the plaintiff's loss or damage. Thus, where it appears that the defendant entered a house of the plaintiff and lighted therein a fire without the plaintiff's consent, with the result that the building was destroyed, a right of recovery exists by reason of the defendant's act of trespass; and the decision of the case involves no question as to negligence in the lighting or management of the fire.' ¹ (Emphasis added.)

The Supreme Court of Texas in Mountain States Tel. & Tel. Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148, held that the cutting by a street paving contractor of a telephone cable lawfully in place beneath the surface of the ground was a violation of a property right which gave rise to a cause of action for trespass regardless of negligence. We quote from the Supreme Court's opinion in said case in part as follows:

'* * * we think a recovery upon the theory of trespass is clearly supported by the record, and we need not further mention the neglignece theory other than to say that as we understand the telephone company's theory of liability it is that Vowell by reason of having severed the cable which was lawfully in the street, became liable in damages regardless of whether such severing was the result of a negligent act or not. The Court of Civil Appeals, on the other hand seems to have taken the position that for the severing act to constitute a trespass Vowell must have actually intended to cut the cable. * * *

"The gist of trespass to personalty is an injury to, or interference with, possession, unlawfully, with or without the exercise of physical force.

"Destruction of, or injury to,...