Harris v. Lebow, 16086

• Decision Date: 23 November 1962
• Docket Number: No. 16086,16086
• Citation: 363 S.W.2d 184
• Parties: T. K. HARRIS d/b/a Harris Construction Company, Appellant, v. Mrs. Erel J. LEBOW, Appellee.
• Court: Texas Court of Appeals

Page 184

363 S.W.2d 184

T. K. HARRIS d/b/a Harris Construction Company, Appellant, v. Mrs. Erel J. LEBOW, Appellee.

No. 16086.

Court of Civil Appeals of Texas, Dallas.

Nov. 23, 1962.

Rehearing Denied Dec. 14, 1962.

McNees & McNees, James L. McNees, Jr., Dallas, for appellant.

Burford, Ryburn & Ford, and Robert E. Burns, Dallas, for appellee.

WILLIAMS, Justice.

Appeal from a default judgment. Mrs. Erel J. Lebow, a feme sole, sued T. K. Harris, as an individual doing business under the name of Harris Construction Company, seeking damages both to her person and property following an alleged trespass. Defendant did not answer and the court rendered judgment by default in the sum of $4,500 representing both actual and exemplary damages. Within ten days the defendant filed a motion for new trial. In this motion defendant admitted that he had been served with process but excuses himself from filing an answer by stating that he turned the citation and petition over to his insurance company to be answered and relied upon such company to file an answer for him. In his motion for new trial defendant also attempted to evade liability by contending that the trespass, if any, was not performed by him individually, but by agents, servants and employees of a corporation. The trial court overruled the motion for new trial and defendant brings this appeal, seeking to reverse the judgment of the trial court upon fourteen points of error.

By his first point of error appellant contends that since the testimony was not recorded he has been deprived of a statement of facts without fault or negligence. The record contains a statement from the official court reporter to the effect that he did not report the testimony. It is generally true that an appealing party is entitled to a statement of facts in question and answer form and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Pacific Greyhound Lines v. Burgess, Tex.Civ.App., 118 S.W.2d 1100. However, appellant has failed to bring himself within this general rule of law and his first point must be overruled for several reasons.

In the first place the failure to obtain a statement of facts was not assigned as error in appellant's motion for new trial. The first complaint of appellant for failure to have a statement of facts if contained in an alleged 'exception' filed long after the order of the court overruling appellant's motion for new trial. It has been held that the failure to obtain a statement of facts must be assigned as error and will not be considered when presented only for the first time in the appellate court. 3 Tex.Jur.2d Sec. 487, p. 732; Reagan v. Copeland, 78 Tex. 14 S.W. 1031; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946.

Secondly, appellant made no effort to obtain a statement of the evidence as provided by Rule 377, Texas Rules of Civil Procedure. This rule authorizes the filing of a statement of facts made up by the party, or by the trial court if the parties fail to agree, independently of a court reporter's notes of the testimony. Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992; 3 Tex.Jur.2d Sec. 474, p. 721. The identical question now presented by appellant was raised in the case of Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317 and there decided adversely to appellant's contention here. The record here is silent as to any effort on the part of appellant to pursue his rights as afforded by Rule 377 T.R.C.P. and not having done so he cannot now be said to be without fault or neglect.

Thirdly, appellant requested the trial court to file findings of fact and conclusions of law and such request was complied with. As stated by the court in Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992, the appellant emphasized his waiver of any right to complain of the absence of a statement of facts by requesting findings of fact and conclusions of law by the trial court. Appellant's first point is overruled.

By his second, third, fourth, fifth, sixth, seventh, ninth, tenth, twelfth and thirteenth points appellant contends that there was 'no evidence' or 'insufficient evidence' to support appellee's recovery and that the amount of damages awarded appellee are manifestly too large. These points must be overruled. As revealed above the record does not contain a statement of facts but there are elaborate findings of fact and conclusions of law by the court. It is a familiar rule of law that in the absence of a statement of facts a reviewing court will presume that the evidence was sufficient to support the verdict and judgment. In such a case we are required to indulge every reasonable presumption consistent with the record in favor of correctness of the judgment of the trial court. Currie v. Hergotz, Tex.Civ.App., 250 S.W.2d 247; Smith v. Ansley, Tex.Civ.App., 257 S.W.2d 156; Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60; Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221; Sekaly v. Hilton Center, Inc., Tex.Civ.App., 340 S.W.2d 827.

Appellant's points eight and eleven complaining of insufficiency of appellee's pleadings to support the judgment relating to damages must also be overruled. We have carefully examined appellee's petition and find that it is entirely sufficient to support the judgment rendered.

By his fourteenth, and last, point appellant contends that the trial court abused...