Carothers v. Olshan
| Decision Date | 07 November 1946 |
| Docket Number | No. 11812.,11812. |
| Citation | 198 S.W.2d 941 |
| Parties | CAROTHERS v. OLSHAN. |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; Allie L. Peyton, Judge.
Action by D. M. Carothers against Immanual Olshan to recover for damage to plaintiff's parking lot and for loss of use thereof. Judgment for defendant and plaintiff appeals.
Affirmed.
Durell M. Carothers and H. Fletcher Brown, both of Houston, for appellant.
Thomas M. Phillips, of Houston (Baker, Botts, Andrews & Walne, of Houston, of counsel), for appellee.
The old Levy Building, which was four stories in height, was located in downtown Houston. It was destroyed by fire in January, 1943. Appellant operated a parking lot at all times material which adjoins the site of the old Levy Building on the north. Appellee was the contractor who was engaged to demolish and remove what was left of the burned building after the fire.
Appellant brought this suit against appellee, alleging that, on February 23, 1943, appellee, acting through his employees, did negligently throw a large brick wall from the adjoining property onto appellant's parking lot, and pled that the doctrine of res ipsa loquitur was applicable. He laid the resulting damages to the parking lot at $399.12, and pled that he was thereby prevented for two months from operating his parking lot, and laid his entire damages at $899.12. Appellee pled a special exception to the generality of appellant's allegations, and to the alleged applicability of the doctrine of res ipsa loquitur, and also pled a general denial.
However, appellee never urged his special exception, and the parties went to trial on appellant's petition, and appellee's general denial. Appellant introduced evidence by an eyewitness that, on February 23, 1943, witness saw appellee's employees hook a cable over the top of the wall, then by that means throw the wall down on appellant's parking lot. Said witness further testified for appellant that the aforesaid cable was attached to a power winch which has been placed by appellee's employees north of the wall, and on appellant's parking lot; that the wall was caused to fall north, toward the winch, and upon the parking lot.
At the conclusion of appellant's evidence, appellee made no motion for judgment, nor otherwise contended that appellant had failed to make out a prima facie case of actionable negligence. But, to the contrary, proceeded with his defense under his general denial. Appellee's evidence was to the effect that due care was exercised by his employees to prevent injuries to persons or property. His evidence as to where the winch was placed was in direct conflict with appellant's. His evidence was that the winch was placed south of the wall which was to be thrown down, was placed within the standing walls upon the site of the burned building. His evidence was to the effect that the wall was thrown south, away from the parking lot and toward the winch (as located by his evidence) and that only a few bricks toppled onto the parking lot, causing no damages.
The court, trying the case without a jury, rendered judgment for appellee, that appellant take nothing. In response to appellant's request, the court filed conclusions of fact and law. So far as here relevant, the court found that a portion of the wall had fallen on the parking lot at the time of the fire, and that the damages thus caused had been repaired by appellant prior to February 23, 1943, and that on said day an additional part of the wall fell on appellant's lot, which appellant had repaired at the cost of $399.12. He found that "the defendant and his agents in pursuing the demolition work were guilty of no negligence and plaintiff suffered no damages as a result thereof." He also found that appellee had caused barricades to be erected, which kept out the public including appellant; also, that the work of demolition was openly done, and that appellant had full opportunity to determine what, if any, acts of negligence appellee and his employees were guilty of. He concluded that appellant's cause of action was not governed by the doctrine of res ipsa loquitur; and that appellant had failed to plead and prove any acts or omissions of negligence, and that appellant had proved no cause of action.
Appellant predicates his appeal on five points, to the effect:
1. That the court erred in finding that appellant had a full opportunity to determine what, if any, acts of negligence appellee and his agents were guilty of.
2. (This point presents the converse of point 1).
3. That the court erred in finding that appellee and his employees were guilty of no negligence, and in holding that appellee and his employees were guilty of no negligence.
4. (This point presents the converse of point 3).
5. That the...
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...393 (Tex.Civ.App .), 1938, err. dism.; Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Tex.Civ.App.), 1939, n.w.h.; Carothers v. Olshan, 198 S.W.2d 941 (Tex.Civ.App.), 1947, err. ref., n.r.e. Where all of the elements are present, the fact of the occurrence may warrant an inference of ......
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...with his contention that there was no evidence to show superior knowledge on his part, Smith relies, in part, on the case of Carothers v. Olshan, 198 S.W.2d 941 (Tex.Civ.App., 1947, wr. ref. n. r. e.). In that case, in a non-jury trial, the trial court found that the defendant was not guilt......
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