Brown v. Frontier Theatres, Inc.

• Decision Date: 26 June 1963
• Docket Number: No. A-9404,A-9404
• Citation: 369 S.W.2d 299
• Parties: Paul Bruce BROWN et ux., Petitioners, v. FRONTIER THEATERS, INC., Respondent.
• Court: Texas Supreme Court

Page 299

369 S.W.2d 299

Paul Bruce BROWN et ux., Petitioners, v. FRONTIER THEATERS, INC., Respondent.

No. A-9404.

Supreme Court of Texas.

June 26, 1963.

Rehearing Denied July 17, 1963.

John P. Dennison, Pecos, for petitioners.

Richard L. Toll, Russell & Tomlin, Pecos, for respondent.

SMITH, Justice.

This suit was originally brought in the District Court of Reeves County, Texas, by James Perry Brown, Blanchelizabeth Brown, and her husband, Paul Bruce Brown, against Frontier Theatres, Inc., seeking damages for household and kitchen equipment, clothing, money, heirlooms and other personal property, which was destroyed in a fire on May 11, 1958. James Perry Brown was dismissed from the suit, and the cause went to trial before the court and a jury, with Blanchelizabeth Brown and her husband, Paul Bruce Brown, as the sole remaining plaintiffs and Frontier Theatres, Inc., as defendant. For convenience, the parties will hereinafter be referred to as the Browns and Frontier Theatres.

After approximately two days of trial before a jury, the jury was dismissed by agreement of the parties. The trial was completed before the court and resulted in a judgment in favor of the Browns and against the Frontier Theatres for the sum of $21,258.00 for loss of property, with interest from May 11, 1958, the date of the loss.

Frontier Theatres perfected an appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas at El Paso. That Court has reversed the judgment of the trial court and rendered its judgment that the Browns take nothing. 362 S.W.2d 360. The judgment of the Court of Civil Appeals is reversed.

On and prior to May 11, 1958, the defendant was the owner of the Eagle- Drive-In Theatre. This theatre was destroyed by a fire which consumed the personal property involved in this suit. The drive-in theatre was a structure approximately 60 feet high and contained an apartment which occupied the lower 8 or 8 1/2 feet. The upper 51 1/2 or 52 feet of the structure consisted principally of a theatre screen on the interior portion and a large neon sign on the exterior.

This theatre was one of three owned and operated by Frontier Theatres, Inc., in the Pecos area and Mr. Russell Ackley was the city manager for Frontier Theatres, Inc. Mr. Ackley had authority to employ such personnel as was necessary for the operation of the business, and Mrs. Brown was employed by him to operate the Eagle-Drive-In Theatre. This employment began about August 24, 1957, and continued until the date of the fire. Under the terms of the employment agreement, the Browns were to live on the theatre grounds on a 24-hour day basis and would serve as caretakers of the defendant's property; they were to report to Mr. Ackley in the event any repairs were needed; they were given no authority to make repairs and their responsibility was limited to reporting such needed repairs to the city manager.

Under the agreement, Frontier Theatres furnished the Brown family the apartment portion of the structure for use as a residence. The Browns were also furnished a ground site adjacent to the apartment, upon which they were permitted to place a trailer house which was used as a part of their residence. Mr. Ackley had full knowledge that the Browns had moved all of their personal property into the apartment and the trailer house.

The evidence indicates and the trial court found that the upper 51 1/2 or 52 feet of the structure immediately above the apartment was under the exclusive management and control of Frontier Theatres and was not a part of the apartment. This upper portion of the structure, including the screen, the neon sign and all electrical wiring and appurtenances thereto, was retained by Frontier Theatres; and the maintenance thereof was the sole responsibility of Mr. Ackley. It was in this part of the structure that the Browns discovered electrical sparks emanating from the electrical wires connected to the neon sign. Mrs. Brown testified that sparks were 'running up and down metal strips on the side of the building,' that she pulled the switch and reported the trouble to Mr. Ackley; and Mr. Ackley sent an electrician to the scene. The electrician made some repairs and informed Mrs. Brown that it was safe to turn the switch and use the neon sign. The sparks again appeared, and Mrs. Brown again called Mr. Ackley. Mr. Ackley, when told that sparks were still 'running up that metal strip,' instructed Mrs. Brown to operate the neon sign. Mrs. Brown testified: 'I asked him (Mr. Ackley) about it and he said that well, if the man (the electrician) said it was all right, you go ahead and operate it And to turn the lights on.' Mrs. Brown testified that on Saturday of the same week the sparks were first discovered she had another conversation with Mr. Ackley. This conversation took place at the State Theatre; and when told by Mrs. Brown that she was still concerned about the condition of the wiring because the difficulty had continued, Mr. Ackley said: 'go ahead and use the lights. Or to use the sign.' The sign was called the 'Eagle.' He said for me to 'turn the eagle back on.' Mrs. Brown testified that in view of this conversation she felt that it was safe to operate the neon sign.

The next day (Sunday) about 9 o'clock, when the evening show was in progress, the fire occurred. According to one of the patrons of the show on that evening, the fire was first seen at the 'top right-hand corner' of the screen. This witness testified that on several occasions prior to the fire he had been in the apartment and was somewhat familiar with the premises and had knowledge of the fact that the Browns lived there. He also knew that the Browns had considerable personal property in the apartment and that upon seeing the fire, he went to the apartment and carried out some of the things. He testified that the fire was up in the tower structure above the apartment at first, that he was forced to stop going in and carrying things out because 'the roof started falling in.'

We have set out the evidence at some length in order to show a basis and support for the material findings of fact and conclusions of law by the trial court. It cannot be said as it was said in the case of Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219, that the filing of findings and conclusions was improper. In determining whether the trial court's findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. See: Gulf Liquid Fertilizer Company v. Titus, Tex., 354 S.W.2d 378 (1962); Elder, Dempster & Co. v. Weld-Neville Cotton Co., 231 S.W. 102 (Tex.Com.App.1921).

This case comes to us with the holding that regardless of whether the duties allegedly owed by Frontier Theatres with respect to the chattels involved be found to rest solely upon a master-servant relationship between the parties, or solely upon a landlord-tenant relationship; or, upon a finding that both such relationships existed simultaneously under the employment agreement, the Browns cannot recover. The Court of Civil Appeals gives several reasons for such holding, and those reasons will be briefly stated:

In discussing the landlord-tenant relationship theory, the Court seems to have based its conclusion that Frontier Theatres was under no duty to keep the premises in repair, and particularly was under no duty to repair the electric wires connected to the neon sign, unless there existed some type of contract or agreement between the landlord and tenant imposing a duty upon the landlord to keep the premises in repair, or a covenant to keep the premises in a reasonably safe condition. The Court held that since there was no such contractual obligation, Frontier Theatres was under no duty to repair the electric wiring, and that therefore, Frontier Theatres was not liable to the Browns.

The Court of Civil Appeals, in connection with its discussion of the master-servant relationship theory, observed that before there can be a recovery there must have been established, in a case such as this, that a legal duty was owed by one person to another; a breach of that duty; and damages proximately resulting from such breach. The Court recognized that where the relationship of the parties is that of master and servant, the duty need not be one imposed by contract between the parties, but may be one implied by law from the circumstances and relationship of the parties. The Court, however, held that a legal duty on the part of the master to warn and protect the servant exists as to dangers only within the knowledge of the master and that no legal duty exists to warn and protect where the servant knows and appreciates the danger. The Court of Civil Appeals reached the conclusion that since the evidence was undisputed that the Browns knew of the dangers incident to the electric sparks originating in the wires connecting to the neon sign and knowing of such dangers and having voluntarily encountered them, they were not only barred from a recovery because Frontier Theatres had breached no duty, but because...