Eastern Texas Electric Co. v. Rhymes
| Decision Date | 23 December 1927 |
| Docket Number | (No. 1560.) |
| Citation | 1 S.W.2d 688 |
| Parties | EASTERN TEXAS ELECTRIC CO. v. RHYMES et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.
Action by W. J. Rhymes against the Eastern Texas Electric Company, in which defendant impleaded the Texas Company, and filed cross-bill against the latter. The Texas Company's demurrer to the cross-bill was sustained, and judgment was rendered for plaintiff against defendant, and defendant appeals. Judgment for plaintiff reversed and remanded. Judgment for the Texas Company on demurrer affirmed.
Orgain & Carroll, of Beaumont, for appellant.
Morris, Sewell & Morris, of Houston, and Gordon, Lawhon, Davidson & Sharfstein, of Beaumont, for appellees.
O'QUINN, J.
Appellee W. J. Rhymes brought this suit against appellant to recover damages for personal injuries, alleging that, while in the due performance of duties owed by him to his master, the Texas Company, he was burned by an electric current passing over the wires of appellant. On his allegations, he was preparing to repair some insulators on a pole installed by appellant to carry its electric wires, and, while in discharge of this duty, was injured through appellant's negligence. On the facts, at the time Rhymes was injured, appellant was furnishing appellee the Texas Company electric current under a written contract fixing the cost, terms, and conditions of such service. As an instrument to effectuate the purposes of this contract, appellant erected a tall pole on its premises near to the Texas Company's premises to carry its electric lines onto the premises of the Texas Company. The wires were strung on this pole, and to regulate the current appellant installed a switch also on this pole. This switch was out of repair, and, that the flow of current might not be interrupted, appellant installed a "jumper" to carry the current around the switch into the plant of the Texas Company. In the discharge of his duties to his master, the Texas Company, Rhymes went upon the pole while the switch was out of repair and the jumper was installed, to throw the switch and to do some necessary repair work. These facts were sufficiently alleged, and further that he did not know the defective condition of the switch and of the installation of the jumper.
Appellant answered by general and special demurrers, general denial, plea of contributory negligence, and by special pleas charging appellee with being a trespasser, and by specially pleading:
"And this defendant says that if there was any right on the part of the Texas Company's employés to go upon said pole, that the same would have existed only in the instance of an emergency such as the operation of said switch to save the life of an employé of the Texas Company, or to save property from fire where the working of said switch could have accomplished either, or both, and that the said Rhymes, if he went upon said pole, was not there in the case of an emergency, and was a trespasser, and without right upon same."
Appellant also answered by a special plea impleading the Texas Company, alleging the contract under which electric current was being furnished and a breach of this contract by the Texas Company, and the Rhymes' injuries were the proximate result of such breach. On these allegations appellant prayed for judgment over against the Texas Company for any sum it might be compelled to pay. The Texas Company answered this plea by general and special demurrers, general denial, etc. The demurrers were carried by the court through the trial to the conclusion of the evidence, and then sustained. The issues between appellant and Rhymes were submitted to the jury upon special issues, except as to the amount of the doctor's bill, etc., and as to these items the jury were peremptorily instructed to find the amount actually paid by Rhymes. On answer of the jury to the other issues, judgment was entered in favor of Rhymes for $25,000 damages, and the additional sum of $729.38, under the court's peremptory charge. In addition to answering the special issues, the jury returned into court the following general verdict, which was in no sense responsive to the court's charge:
As an essential element of Rhymes' cause of action, the court submitted issue No. 1 as follows:
To this question the jury answered: "Yes."
On the issue made by its special plea that Rhymes had no right on its pole, except in case of an "emergency," appellant requested the submission of the following special issue:
"Special requested issue No. 34: Did the plaintiff Rhymes have the right to go upon the pole of defendant, Eastern Texas Electric Company, and to operate said switch only in case of an emergency?"
In connection with said requested issue, appellant offered the following special charge defining the term "emergency":
"Defendant's special charge No. 109: Gentlemen of the jury: You are instructed that it is the contention of the defendant company that the only time an employee of the Texas Company would have a right to work switch No. 10 would be in the case of an emergency such as the saving of a life of one about to be killed by the high-tension lines, or to save property about to be set on fire by said high-tension lines, and, in answering defendant's special issue No. 34, you will refer to, and be guided by, this instruction as to what is meant by the term `emergency' as therein used."
This issue and special charge were refused by the court, and in lieu thereof Rhymes requested, and the court submitted, the following issue:
Though excepted to on that ground, the court refused to instruct the jury on the burden of proof under this issue and to define the term "emergency," though requested so to do.
The jury answered the issue: "Generally."
The trial court erred in refusing appellant's special issue No. 34 and the accompanying charge defining "emergency." The issue that Rhymes had the right to go upon the pole "only in the case of an emergency," and whether an emergency existed, was raised by the evidence. It is not necessary to review the evidence on that issue, since by requesting its submission appellee conceded that it was in the case. Having pleaded "emergency" as an affirmative defense, and having supported its plea by competent evidence, and having prepared a separate and distinct issue calling for a finding thereon, with a charge defining "emergency" as pleaded, and having duly requested its submission, appellant was entitled to a jury finding thereon, and the court committed reversible error in its refusal. In Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, the Supreme Court said:
"The statutes make it the duty of the court in trials by jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and third to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue."
This issue was raised by the pleadings; it was controverted; and appellant's requested issue submitted it clearly, distinctly, and separately. In Railway Co. v. Wilson, 279 S. W. 808, it was said by the Commission of Appeals:
"We think this special requested charge presents clearly, distinctly, and separately, the issue tendered by plaintiff in error in its pleadings, and should have been given."
See, also, Robinson v. Ætna Life Insurance Co. (Tex. Com. App.) 276 S. W. 901; Graves v. Haynes (Tex. Com. App.) 231 S. W. 383; Davis v. Pettitt (Tex. Com. App.) 258 S. W....
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Gehring v. Strakos
...v. Platt, 123 Tex. 486, 72 S.W.2d 580. In the absence of such proximate causation there can be no indemnity. Eastern Texas Electric Co. v. Rhymes et al., Tex.Civ.App., 1 S.W.2d 688, error 'In order that a person who has paid damages may be entitled to indemnity from another, it is essential......