Hays v. The Texan
| Decision Date | 15 October 1943 |
| Docket Number | No. 14559.,14559. |
| Parties | HAYS v. THE TEXAN, Inc., et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.
Action by Leon Hays against the Texan, Inc., and another for injuries sustained by plaintiff when he jumped from the fifth story of a hotel building operated by defendants to avoid being burned when building was consumed by fire. From a judgment dismissing the action, the plaintiff appeals.
Affirmed.
John Davenport and H. M. Muse, both of Wichita Falls, for appellant.
Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellee The Texan, Inc.
Bromberg, Leftwich, Gowan & Schmucker, of Dallas, for appellee R. C. Levy.
Plaintiff Leon Hays sued The Texan, Inc., a corporation, and R. C. Levy for damages sustained when he jumped from the fifth story of a hotel building operated by defendants, to avoid being burned to death when the building was consumed by fire.
The trial court sustained special exceptions to plaintiff's petition, and when he declined to amend, the case was dismissed; from the judgment of dismissal plaintiff has appealed.
The amended pleadings upon which plaintiff relied alleged that defendants jointly operated the hotel, and that he was a paying guest at the time of the fire. He charged that the fire occurred during the early morning hours of May 14, 1942; that he was asleep in his room at the time.
The negligent acts of defendants, charged to have been the proximate causes of plaintiff's injuries, are, substantially, as follows: (1) The hotel building was constructed of brick on the outside, with hallways extending its entire length on all floors. The hall floors and elevator shaft, the latter extending from bottom to top, were built of pine inflammable materials and were so situated as to create a strong draft through the whole building, thereby causing a rapid spreading of fire on the occasion in question; that all said facts were well known to defendants. (2) Failure of defendants to have installed and maintained, on the floor where the fire started, adequate fire hose in sufficient length to reach and convey water to the room where the fire started, and failure to properly inspect said fire fighting equipment before the fire to see that it and any other auxiliry fire fighting equipment on said floor were usable for said purpose in case of an emergency. (3) Failure of defendants to maintain adequate fire extinguishers or other auxiliary fire fighting equipment on said floor in that such fire extinguishers as they had on said floor, and the solution therein, had been allowed to deteriorate until they were not usable for the purposes intended. That if said extinguishers had been in usable condition they could and would have been used in a way so as to quench the fire before it spread to the room occupied by plaintiff. And (4) failure by defendants, after they knew the fire had started, and they had discovered the peril of plaintiff, to notify him by telephone or otherwise of the fire; that he had a telephone in his room connected with the control telephone system at or near the office on the ground floor; that the telephone system was in operation after the fire had started; that he was not called or otherwise aroused from sleep by any effort or acts of defendants.
The petition contains allegations to the effect that because of the failure of defendants to in some way notify him of the fire, to save his own life he was forced to jump from the fifth story to the roof of an adjacent one-story building. Full allegations are made of the nature and extent of the injuries received, and, as described, they were serious.
Referable to the first subdivision of the petition made by us above, defendants specially excepted, substantially because the petition did not set out any facts to support the conclusions pleaded, and that the alleged facts were immaterial and prejudicial before a jury, and do not set forth any legal liability of defendants in connection with the things stated.
Relating to second division by us, exception was leveled at the pleadings because they were conclusions, not supported by fact allegations and because such facts as were stated were immaterial and prejudicial before a jury; that there were no allegations as to what would have been adequate fire hose; that no allegations were made that it was the duty of defendants to keep and maintain on the floors of the hotel adequate fire hose of any description for any purpose.
To our subdivision 3 of the petition, defendant excepted because of a lack of allegation in the petition as to the nature of the inspection defendants were required or obligated to make of the fire hose on each floor of the hotel, which, if violated, would or could make such failure a proximate cause of plaintiff's injuries. Further, because there were no allegations that defendants had the duty to inspect such fire fighting equipment, or to instruct their employees in the use thereof; that all said allegations as were made were immaterial and prejudicial to defendants' rights before a jury. They further excepted because there was no allegation as to what defendants should have done after making an inspection of the equipment, if necessary to make one, and because of a lack of allegations showing that such failure of defendants could or would have been the proximate cause of the fire.
To subdivision 4 of the pleadings made by us, several special exceptions were urged. They are, in substance: That no allegations were made that it was the duty of defendants to call plaintiff by telephone or otherwise notify him that a fire had broken out, since it was not made to appear how the fire had progressed after defendants knew of it, nor that a telephone call to him would have been effective to arouse him, nor that the fire was occasioned by any negligent act of defendants, and that if an attempt is made to inject the doctrine of discovered peril into the case, there were no allegations that defendant discovered and realized the dangerous situation in which plaintiff was for a sufficient length of time to arouse the guests in the hotel.
There are 14 of these special exceptions, some of which repeat much that is contained in others, but we believe we have given enough to present a fair picture of what was before the court when the exceptions were sustained.
The petition in this case indicates that the two named defendants operated the hotel jointly; but by another count it is disclosed that defendant The Texan, Inc.,...
To continue reading
Request your trial
-
Irwin v. Torbert, s. 16076, 16097, 16100, 16101.
...of any particular kind of materials. Subsequently this case was quoted with approval in Hays v. The Texan, Inc., 1943, Tex.Civ.App., 174 S.W. 2d 1006, where the hotel building then under consideration was brick, though the elevator shaft from top to bottom was built of pine inflammable mate......
-
Irwin v. Torbert
... ... requiring hotels to be constructed of any particular kind of ... materials. Subsequently this case was quoted with approval in ... Hays v. The Texan, Inc., 1943, Tex.Civ.App., 174 ... S.W.2d 1006, where the hotel building then under ... consideration was brick, though the elevator ... ...
-
Mozer v. Semenza
...321; Irwin v. Torbert, 1948, 204 Ga. 111, 49 S.E.2d 70; Smith v. The Texan Inc., Tex.Civ.App.1944, 180 S.W.2d 1010; Hays v. The Texan Inc., Tex.Civ.App.1943, 174 S.W.2d 1006; National Hotel Co. v. Motley, Tex.Civ.App.1938, 123 S.W.2d 461; Baugh v. McClesky, Tex.Civ.App.1927, 292 S.W. 950. W......
-
Cain v. George
...care. Baker v. Dallas Hotel Co., 73 F.2d 825 (5th Cir. 1934); Benoit v. Wilson, 258 S.W.2d 134 (Tex.Civ.App.1953); Hays v. The Texan, Inc., 174 S.W.2d 1006 (Tex.Civ.App.1943); Montford v. West Texas Hotel Co., 117 S.W.2d 811 (Tex.Civ.App.1938); Baugh v. McCleskey, 292 S.W. 950 Appellants co......