Houston Fire & Cas. Ins. Co. v. Walker

• Decision Date: 17 June 1953
• Docket Number: No. A-4065,A-4065
• Citation: 260 S.W.2d 600,152 Tex. 503
• Parties: HOUSTON FIRE & CASUALTY INS. CO. et al. v. WALKER.
• Court: Texas Supreme Court

Page 600

260 S.W.2d 600

152 Tex. 503

HOUSTON FIRE & CASUALTY INS. CO. et al. v. WALKER.

No. A-4065.

Supreme Court of Texas.

June 17, 1953.

Rehearing Denied Oct. 7, 1953.

Chilton Bryan, Butler, Binion, Rice & Cook, Frank J. Knapp and John L. McConn, Jr., Houston, for petitioners.

Vinson, Elkins, Weems & Searls, Thomas B. Weatherly and L. J. Clayton, Houston, for respondent.

HICKMAN, Chief Justice.

Under our view the controlling question in this case is one of procedure, and our statement will be confined to the portions of the record relating to that question. The respondent, Harley R. Walker, sued petitioners, a number of insurance companies, upon builders risk insurance policies to recover damages for injury to a concrete dam allegedly caused by lightning. Upon the answers of the jury to special issues the trial court rendered judgment that respondent take nothing. From that judgment he prosecuted an appeal to the Court of Civil Appeals upon the transcript alone, resting his case on the theory that a statement of facts was unnecessary for a decision of the case on appeal. The petitioners caused a statement of facts to be prepared and upon motion made by them the Court of Civil Appeals entered an order granting them leave to file same. That order was later rescinded, with the result that the case was decided by the Court of Civil Appeals upon the transcript alone and it comes to this court without any statement of facts. It was the conclusion of the Court of Civil Appeals that under the verdict respondent was entitled to judgment as a matter of law and upon that ground it reformed the policies and rendered judgment in respondent's favor for the amount of damages assessed by the jury. 254 S.W.2d 429.

Respondent has consistently contended, and still contends, that the statement of facts was not properly brought to the Court of Civil Appeals and that this court would not be authorized to consider it. His position is that the case must be decided on the transcript alone. While a major portion of the application of the petitioners for a writ of error is given over to the contention that the Court of Civil Appeals erred in its order striking the statement of facts and to various contentions that a consideration of the statement of facts will reflect that the trial court's judgment is correct, still they do present the point that the Court of Civil Appeals erred in reversing the trial court's judgment on the transcript, and that in the absence of a statement of facts the trial court's judgment should be affirmed. The parties thus join issue as to the proper construction of the verdict. We have concluded that the Court of Civil Appeals erred in reversing the trial court's judgment on the transcript, and since the parties join issue on that question and since respondent objects to our consideration of the statement of facts, we shall devote our opinion to the issue thus joined and decide the case as it comes to us, that is, without any statement of facts at all. From a consideration of the transcript, including the special issues submitted to the jury, it is made to appear that respondent's contention is not that lightning struck the dam, but that lightning struck a tree which in some manner resulted in jury to the dam. In the absence of a statement of facts we cannot know how that result might have come about.

The first four special issues submitted to the jury were as follows:

'Special Issue No. 1. Do you find from a preponderance of the evidence that there was a pine tree standing on the upstream side near the south end of the dam structure located on the premises in question just before the event made the basis of this suit?

'If you have answered Special Issue No. 1 'Yes,' and only in that event, then answer:

'Special Issue No. 2. Do you find from a preponderance of the evidence that lightning struck such tree on the night of February 22, 1949?

'If you have answered Special Issue No. 2 'Yes,' and only in that event, then answer:

'Special Issue No. 3. Do you find from a preponderance of the evidence that such tree, by reason of being struck by lightning, if you have so found, was exploded out of the ground upon the occasion in question?

'If you have answered Special Issue No. 2 'Yes,' and only in that event, then answer:

'Special Issue No. 4. Do you find from a preponderance of the evidence that the striking of the tree by lightning, if you have so found, was a proximate cause, as that term is herein defined to you, of damage to the dam structure?'

Issues Nos. 1, 2, and 4 were answered 'Yes' and issue No. 3 was answered 'No.' The Court of Civil Appeals sustained the contention that Special Issue No. 3 submitted an immaterial question and that the answer thereto should be disregarded. Under that theory it was concluded that the answers to issues 1, 2, and 4 compelled a rendition of judgment in favor of respondent. The effect of that holding was that the trial judge who heard all of the evidence of the parties submitted an issue, the answer to which could have no bearing upon the judgment to be rendered. The inquiry naturally arises: How can it be determined without a statement of facts that Special Issue No. 3 was immaterial? Certainly, the presumption is that it was material, and a holding that, as a matter of law, it was immaterial must result from a consideration of the record as a whole.

After the verdict was returned respondent filed a motion for judgment thereon on the ground that the answer of the jury to Special Issue No. 3 should be disregarded as immaterial. No order was entered on that motion except as is reflected in the judgment hereinafter to be considered. The petitioners filed three motions. The first motion was for judgment non obstante veredicto. That motion was overruled by a separate order. The second motion was that the jury's finding in response to Special Issue No. 4 should be disregarded because such finding had no support in evidence in view of the jury's finding in answer to Special Issue No. 3. No other was entered on that motion except as reflected in the judgment. The third motion was on two grounds, the first ground being that the jury's answer to Special Issue No. 3 constituted a...