Cohn v. Saenz

• Decision Date: 23 April 1919
• Docket Number: (No. 6185.)
• Parties: COHN v. SAENZ et al.
• Court: Texas Court of Appeals

Page 492

211 S.W. 492

COHN v. SAENZ et al.

(No. 6185.)

Court of Civil Appeals of Texas. San Antonio.

April 23, 1919.

Rehearing Denied May 7, 1919.

Appeal from District Court, Jim Wells County; J. F. Wullally, Judge.

Action by Josefina Garcia de Saenz, substituted as plaintiff instead of Rufino Saenz, her husband, against M. D. Cohn and Ramon Saenz, with cross-action by Ramon Saenz against M. D. Cohn. Judgment against plaintiff in favor of Ramon Saenz, and in favor of Cohn on the cross-action, but in favor of plaintiff as against Cohn, and Cohn alone appeals. Affirmed.

See, also, 194 S. W. 685.

W. W. McCampbell, of Alice, and J. C. Scott, of Corpus Christi, for appellant.

Jas. M. Taylor, of Corpus Christi, and John A. Pope, of Laredo, for appellees.

MOURSUND, J.

This suit was filed in Duval county, and the venue changed to Jim Wells county. It was instituted by Rufino Saenz against his brother, Ramon Saenz, and M. D. Cohn, to recover damages for personal injuries to his wife, Josefina Garcia de Saenz, sustained by reason of the alleged explosion of a lamp filled with gasoline, "or some other highly explosive substance similar to gasoline," which had been delivered to plaintiff's child by Ramon Saenz, who conducted a small store at Palito Blanco, in Jim Wells county, and had been sold for coal oil by said Saenz. For cause of action against Cohn, it was alleged that he was a merchant at San Diego, in Duval county, and that he had negligently sold a barrel of gasoline or some other highly explosive substance similar to gasoline to Ramon Saenz for coal oil, and that the substance which caused the explosion, was sold by Ramon Saenz out of such barrel and sold for coal oil.

A short time before the beginning of the term of court at which the cause was tried Rufino Saenz died, and when the cause was reached for trial his wife was, in her own right and as surviving wife and as natural guardian and next friend of the four minor children of herself and husband made the plaintiff in the cause. She filed a fifth amended original petition, upon which trial was had.

Cohn answered by two pleas in abatement; a general demurrer and special exceptions; a general denial; a special plea wherein res adjudicata is pleaded; and a special plea of negligence on the part of Rufino Saenz or his wife in buying, receiving, and handling the substance, which negligence was alleged to have proximately caused or contributed to cause the alleged injuries.

Ramon Saenz answered by general demurrer and general denial, and by cross-action against Cohn, to which cross-action Cohn answered by a general and three special exceptions, a general denial, and a plea in bar.

The cause was submitted on special issues, and judgment entered upon the verdict in favor of Josefina Garcia de Saenz against Cohn for $3,500 and all costs; that she take nothing against Ramon Saenz; that Ramon Saenz take nothing by his cross-action against Cohn; and that Josefina Garcia de Saenz recover nothing in her capacity as next friend of the minor children.

The pleas in abatement are predicated upon the following facts: On January 30, 1912, the district court sustained certain exceptions of defendant Cohn to plaintiff's petition, and entered on its minutes an order reciting the sustaining of said exceptions; that plaintiff declined to amend; and that thereupon plaintiff's suit was by the court dismissed. The plaintiff appealed from such order, and this court held that there was no final judgment and dismissed the appeal. The opinion appears in 148 S. W. 367, and is referred to for such additional statement as may be appropriate to show the basis for our judgment dismissing the appeal. No order or judgment was entered expressly setting aside the order sustaining the exceptions, but on June 12, 1912, plaintiff in vacation filed his second amended original petition and procured service thereon, and was permitted to amend several times thereafter, as is shown by the fact that the trial was had on the fifth amended original petition. The appellant urges, with respect to his first plea in abatement, that the order sustaining the demurrers was a final and conclusive determination of the case as between the plaintiff and Cohn, until it is reversed, vacated, or set aside, and, with respect to the second plea, that it was too late to file an amended petition in vacation several months after such order was entered, and that the failure to file an amended petition within a reasonable time after the exceptions were sustained abates the suit.

A judgment is not divisible, and, the order relied upon by appellant not being a final judgment, it must be held to have been merely an interlocutory order, the only part of which could have any legal status being that portion sustaining certain exceptions and overruling others.

We do not deny, of course, that a judgment upon demurrer may constitute a final adjudication such as may be availed of under a plea of res adjudicata, but hold that in this case the judgment was not a final one, and therefore the cases cited by appellant are not applicable.

We believe that the interlocutory order ruling on the exceptions presented by Cohn must be held not to differ from an ordinary order showing the rulings on exceptions unless such difference be caused by the fact that it recited that plaintiff declined to amend. But, as the plaintiff did amend before the following term of court, and thereafter prosecuted the suit by permission of the court, his refusal to amend at the time the ruling was made did not abate the suit.

We conclude the court did not err in overruling the two pleas in abatement and the plea in bar based upon the same facts, and therefore overrule assignments 1, 2, and 23. In support of these rulings we cite Andrews v. Richardson, 21 Tex. 295; Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211; Webb v. Reynolds, 160 S. W. 152.

Appellant, Cohn, urged the following special exceptions to the petition:

"It affirmatively appears from the face of plaintiff's fifth amended original petition that the alleged negligence of this defendant in selling gasoline, or some other highly explosive substance similar to gasoline, to his codefendant, Ramon Saenz, was not the proximate cause of the injuries to plaintiff, Josefina Garcia de Saenz, but, on the contrary, the negligence of this defendant's codefendant, under the circumstances stated in said petition, in retailing gasoline, or some other highly explosive substance similar to gasoline, was the proximate cause of the injuries to plaintiff, Josefina Garcia de Saenz, and therefore this defendant is in no manner whatever liable therefor."

"The petition affirmatively shows that this defendant did not sell or retail the gasoline or some other highly explosive substance similar to gasoline, which caused the injuries complained of, to either Rufino Saenz, the original plaintiff, or to Josefina G. de Saenz, his wife and the present plaintiff herein, but that this defendant's codefendant, Ramon Saenz, sold the same to Rufino Saenz or to his wife, said Josefina; and the gasoline, or other highly explosive substance similar to gasoline, alleged to have caused the injuries to plaintiff, was owned by and in the possession of codefendant, Ramon Saenz, at the time same was sold to Rufino Saenz, or to his wife, the present plaintiff, by codefendant, Ramon Saenz, and therefore the alleged act of this defendant in selling gasoline or some other substance similar to gasoline to his codefendant, Ramon Saenz, was not the proximate cause of the alleged injuries to said Josefina G. de Saenz."

"The petition does not show that this defendant ever sold, or undertook to sell, to Rufino Saenz, the original plaintiff herein, or to his wife, Josefina G. de Saenz, the present plaintiff, either coal oil, gasoline, or any highly explosive substance similar to gasoline, or any other article whatever. But it affirmatively appears from the face of the petition that it was not this defendant who sold to Rufino Saenz, the original plaintiff, or his wife, Josefina G. de Saenz, the present plaintiff, the gasoline or other highly explosive substance similar to gasoline, alleged to have caused the injuries to plaintiff Josefina D. de Saenz, but this defendant's codefendant is alleged to have sold the same to Rufino Saenz, the original plaintiff, or his wife, Josefina G. de Saenz, the present plaintiff."

These exceptions were overruled. If they be considered special exceptions, they fail to point out any defect in the pleading in such a manner as to enable plaintiff to amend. If it be conceded that the fact alone that the gasoline was owned by Ramon Saenz and sold by him conclusively shows that Cohn's negligent act in selling the same to Ramon Saenz for coal oil cannot be the proximate cause of the injury suffered, the exceptions are well taken; but certainly such a broad holding cannot be made.

If the first exception be considered a general demurrer directed at the petition on the ground that it affirmatively appears therefrom that Cohn's act was not the proximate cause of the injury, we conclude that it is without merit. There is no allegation that Ramon Saenz had discovered that the substance sold him by Cohn as coal oil was gasoline at the time he sold it to plaintiff's child, or any other facts tending to show that he was guilty of any act which, independently of the negligence of Cohn, caused the injuries complained of. It is true that plaintiff charged that Ramon Saenz negligently, recklessly, and carelessly sold the substance to plaintiff's child. It is impossible to tell whether this conclusion is based on the theory that Ramon Saenz had knowledge of the dangerous nature of the substance when he delivered it to his brother's child for use in lamps, or whether it is based on the theory that it was the duty of Ramon Saenz to ascertain the nature of the substance...