Crain v. West Texas Utilities Co., 2707.

• Decision Date: 04 March 1949
• Docket Number: No. 2707.,2707.
• Citation: 218 S.W.2d 512
• Parties: CRAIN v. WEST TEXAS UTILITIES CO.
• Court: Texas Court of Appeals

Page 512

218 S.W.2d 512

CRAIN v. WEST TEXAS UTILITIES CO.

No. 2707.

Court of Civil Appeals of Texas. Eastland.

March 4, 1949.

Rehearing Denied March 25, 1949.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Suit by Drew Crain against the West Texas Utilities Company for damages allegedly caused by blasting. Judgment for defendant, and plaintiff appeals.

Affirmed.

R. P. Haun and John O. Harris, both of Coleman, for appellant.

Garland Woodward, of Coleman, and Wagstaff, Harwell, Wagstaff & Alvis, of Abilene, for appellee.

LONG, Justice.

Drew Crain instituted this suit against West Texas Utilities Company for damages to his residence in Talpa, Coleman County, Texas, which he alleged was caused by the defendant in blasting a hole near his residence for the purpose of installing an electric light pole on December 22, 1946. The jury found, in answer to special issues, (a) that the defendant did not use an excessive amount of explosive in blasting the hole; (b) that defendant did not fail to use ordinary care in determining the amount of explosive used; (c) that the defendant did not fail to use that degree of caution to avoid damage to plaintiff's house as an ordinary prudent person would have used under same or similar circumstances; (d) that there was no difference in the reasonable cash market value of plaintiff's house immediately before the explosion and immediately after such explosion. Judgment was for the defendant, from which plaintiff has appealed.

While plaintiff was testifying, counsel for defendant asked him if he was carrying explosion insurance on his house. The court sustained the objection of counsel for plaintiff to such question and instructed the jury not to consider it for any purpose. Thereafter, counsel for plaintiff asked permission of the court to withdraw his objection to the evidence and to permit plaintiff to explain to the jury that he had filed suit against the defendant and had not filed suit on his builder's risk insurance policy for the reason that it had lapsed by the passing of more than ninety days before he fully ascertained his damage. When the question of insurance was injected into the case, counsel for plaintiff did not ask permission of the court to withdraw his announcement of ready for trial and request the court to declare a mistrial. Assuming without deciding that it was error for counsel to ask the plaintiff about insurance on his house, we are of the opinion that such error, if any, was waived by plaintiff when he failed to ask the court to declare a mistrial. It was so held by our Supreme Court in the recent case of Ford v. Carpenter, 216 S.W. 2d 558. Furthermore, plaintiff withdrew his objection to such evidence. The court did not commit error in refusing to allow plaintiff to explain to the jury why he had not filed suit on his builder's risk insurance policy. This evidence was not material upon any issue in the case. If plaintiff had attempted to prove that he did carry builder's risk insurance on his house, certainly such evidence would not have been admissible. When defendant attempted to prove this fact plaintiff objected and the court properly sustained the objection. If plaintiff desired to preserve his point to the asking of the question, it was necessary that he move for a mistrial. Failing in this it was not error for the court to refuse to permit him to go into why he had not filed suit on his insurance policy and bring into the case evidence that would shed no light upon any of the issues therein.

We also are of the opinion that no error is shown in point 2 wherein plaintiff complains of the action of the trial court in sustaining an objection to a question propounded by counsel for plaintiff to W. O. Wallace, a witness for the defendant, as follows:

"Q. Did Mr. Crain tell you he had a builder's risk insurance policy?"

We cannot perceive upon what issue the above question or an answer thereto would be pertinent or upon what it would shed any light. As to whether the plaintiff told Mr. Wallace about a builder's risk insurance policy, to our mind would be wholly irrelevant, immaterial and hearsay. The action of the court in sustaining the objection was correct.

The plaintiff assigns as error the failure of the trial court to submit the following issues requested by him:

"No. 1. Do you find from a preponderance of the evidence that the Defendant, by blasting for the light pole described in plaintiff's petition, on or about December 22nd, 1946, caused damages to plaintiff's dwelling house?

"No. 2. If you have answered the above question `Yes' then state the amount of such damages in dollars and cents.

"In connection with the above issue, you are instructed that under the law, if the defendant, in the way and manner in which it blasted caused the earth to tremor and thereby disturb plaintiff's lateral support it would be liable for resulting injuries."

It will be noted that issue No. 1 does not contain any element of negligence. Before the plaintiff could recover in this case, it was necessary that he allege and prove negligence on the part of the defendant. Standard Paving Co. v. McClinton, Tex.Civ.App., 146 S.W.2d 466; Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ.App., 140 S.W.2d 491.

Consequently, issue...