Collier v. Hill & Hill Exterminators, 13344

• Citation: 322 S.W.2d 329,73 A.L.R.2d 1141
• Decision Date: 05 February 1959
• Docket Number: No. 13344,13344
• Parties: Fred Allan COLLIER, Sr., et ux., Appellants, v. HILL & HILL EXTERMINATORS et al., Appellees.
• Court: Texas Court of Appeals

Page 329

322 S.W.2d 329

73 A.L.R.2d 1141

Fred Allan COLLIER, Sr., et ux., Appellants, v. HILL & HILL EXTERMINATORS et al., Appellees.

No. 13344.

Court of Civil Appeals of Texas, Houston.

Feb. 5, 1959.

Rehearing Denied March 12, 1959.

Blades, Crain, Slater & Winters, W. H. Blades, Houston, for appellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden, Houston, for appellees.

BELL, Chief Justice.

Appellants sued appellees for damages allegedly resulting to them from the death of their daughter who at the time of her death was two years and eight months old. They sued both in their individual capacities and for the benefit of all beneficiaries to the estate of their daughter Lori Alice under the Death Statute, Vernon's Ann.Civ.St. art. 4671. $The basis of the suit was the alleged negligence of appellees in using phosphorus poison in connection with their efforts to exterminate roaches and silver fish in the home of appellants. It was alleged that appellees were negligent in the manner in which the poison was applied; that the child ate some of the poison and this caused her death.

The appellees denied the allegation and affirmatively pled that the death of the child was the result of contributory negligence on the part of the appellants, the negligence consisting in their failure to prevent the child from getting into the poison when they knew it had been used and knew the places it had ben applied.

The case was submitted to the jury on apecial issues. In response to such issue the jury found as follows:

1. That Lori Alice Collier ate some of the phosphorus poison used by appellees in the home and garage of appellants.

2. That she died as a result of eating such poison.

3. That the manner in which the phosphorus paste was applied by appellees in the home and garage of appellants was a negligent one.

4. That this negligence was a proximate cause of the death of Lori Alice.

5. That the appellants knew, or should have known, that the phosphorus placed in the home and garage would endanger the health and life of the child if it should be consumed by her.

6. That appellants Fred Allan Collier 'and/or' Murnelle Cox Collier failed to exercise that degree of care that would have been exercised by prudent persons in the exercise of ordinary care, under the same or similar circumstances, in failing to keep their child away from the phosphorus.

7. This failure was a proximate cause of the child's death.

8. The child's death was not the result of an unavoidable accident.

9. The damages were assessed at $8,500.

Appellants filed their motion asking the Court to set aside the answers of the jury to Special Issues Nos. 5, 6 and 7, which convicted appellants of contributory negligence because there was no evidence to support such answers and, after setting aside such answers, to enter judgment for appellants. In addition to the contention that such issues be set aside because there is no evidence to support the jury's answers, the appellants contend that the answer to Special Issue No. 6 is a nullity because it assumes appellants failed and there is no finding that they failed, and also since the Issue inquired as to whether Mr. 'and/or' Mrs. Collier failed to exercise due care, it cannot be said whether the jury answered Mr. and Mrs. Collier failed, or that Mr. Collier failed, or Mrs. Collier failed.

Appellees filed a motion for judgment on the verdict.

The Court overruled appellant's motion for judgment on the verdict after setting aside the jury's answers to Special Issues Nos. 5, 6 and 7, and granted appellees' motion and entered judgment that appellants take nothing.

These are appellants' complaints which they assert entitle them to a reversal and rendition of judgment in their favor, or at least to a reversal of the case for retrial:

1. There is no jury finding that appellants failed to use due care in keeping their child from consuming the poison but such fact is assumed in Special Issue No. 6.

2. The form of Special Issue No. 6, reading:

'Do you find from a preponderance of the evidence that Fred Allan Collier and/or Marnelle Cox Collier failed to exercise that degree of care as would have been exercised by reasonably prudent persons in the exercise of ordinary care, under the same or similar circumstances, in failing to keep their child away from a substance containing phosphorus?'

is duplicitous and is in such form that the jury's answer in fact answers nothing.

3. There is no evidence supporting the jury's answers to Special Issues Nos. 5, 6 and 7 and the Trial Court erred in not setting aside such answers and entering judgment for them on a basis of the jury's answers to Special Issues 1, 2, 3, 4 and 8, which latter Issues convicted appellees of negligence, which was a proximate cause of the child's death and assessed damages.

Appellees contend this Court cannot consider the complaint that Special Issue No. 6 was duplicitous because there was no objection to the form of the Issue. They also contend we cannot consider the complaint that the Trial Court refused to set aside the jury's answers to Special Issues Nos. 5, 6 and 7, because appellants made no objection to the submission of such Issues.

Appellants cannot complain that Special Issue No. 6 was duplicitous because they made no objection to the Issue. Any such complaint they might have had was waived by the failure to object to the form of the Issue. Rule 274, Texas Rules of Civil Procedure.

The complaint that Issue No. 6 assumed that the Colliers or one of them failed to keep the child from consuming the poison is untenable for two reasons. The evidence conclusively establishes that they or one of them did fail because she consumed some of the poison. There could, it would seem, be no question about this. The only question would be as to whether such act was negligence. Where a fact is undisputed it is unnecessary to obtain an answer from the jury. Only disputed matters are submitted to that body for solution. Too, whether the Colliers or one of them failed is only one element of a ground of defense and where a ground of recovery or defense consists of more than one element and one or more of such elements are submitted and one or more are omitted, and there is no objection to the charge because of such omission or no request to include such element, it will be presumed that such omitted element was found by the Court in a manner so as to support the judgment, if there be evidence in the record to support such a presumed finding. Rule 279, T.R.C.P.

Appellees' contention that we cannot consider appellants' complaint that the Trial Court erred in not setting aside the jury's answers to Special Issues Nos. 5, 6 and 7 on the ground that there was no evidence to support such Issues, because appellants did not object to the submission of such issues, is without merit. The last sentence of Rule 279, T.R.C.P., provides: 'A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.'

Rule 301, T.R.C.P., authorizes motions for judgment notwithstanding the verdict and motions to disregard the jury's answers to certain issues and after disregarding such answers to render judgment for the movant on the remaining portion of the verdict. In case of a motion to disregard certain answers (as distinguished from a motion to disregard the whole verdict), the test as to whether such answers should be disregarded is whether there is any evidence to support the answers.

These two rules must be construed together and when so construed they authorize such complaint to be made for the first time after verdict. Of course, such complaint could not be made for the first time on appeal. Myers v. Crenshaw, Tex.Com.App., 134 Tex. 500, 137 S.W.2d 7; Halford v. Perry, Tex.Civ.App., 310 S.W.2d 745, no writ history; Myers v. Minnick, Tex.Civ.App., 187 S.W.2d 941, no writ history.

We will, therefore, consider appellants' complaint on appeal that the Trial Court erred in not disregarding the jury's answers to Issues 5, 6 and 7.

Appellees have a cross-point in which they assert that the trial court erred in not granting their motion for an instructed verdict. They say they were entitled to this because there as no showing of negligence on the part of their agent, nor was there any evidence establishing that the phosphorus found in the child's system was the phosphorus which had been applied by their agent.

These two questions require a review of the testimony.

Mr. Collier was the first witness. He testified that they employed appellees to exterminate roaches and silver fish from their home here in Houston. The home is located at 3223 Castlewood. On June 16, 1956, Harry West, agent of appellees, came to their home pursuant to previous arrangements made with appellees to perform this service. This day was a Saturday. Mr. West told Mrs. Collier to cover the dishes with a cloth and after the work had been done to rinse the dishes. Mr. West used some kind of spray, spraying the baseboards in the house. After finishing with this, Mr. West began spreading a paste. The paste was put in inverted cones in some places. These cones were placed under the stove, washing machine, refrigerator and bath tub. Inside the bathroom was a clothes hamper for soiled clothing. Inside of this hamper was an opening into the plumbing. The opening was kept closed by a wooden covering. The covering was held in place with nails. Mr. Collier, at Mr. West's request, got a hammer and adjusted the nails sufficiently to allow the removal of the covering. Inside of this recess for the plumbing fixtures Mr. West put some of the phosphorus paste. The covering was later found in place, though it was not nailed back. After the child's death inspection was made of this and the covering was in place. No phosphorus paste was...