Howsley & Jacobs v. Kendall

• Decision Date: 26 February 1964
• Docket Number: No. A-9528,A-9528
• Citation: 376 S.W.2d 562
• Parties: HOWSLEY & JACOBS et al., Petitioners, v. Mrs. W. S. KENDALL et al., Respondents.
• Court: Texas Supreme Court

Page 562

376 S.W.2d 562

HOWSLEY & JACOBS et al., Petitioners, v. Mrs. W. S. KENDALL et al., Respondents.

No. A-9528.

Supreme Court of Texas.

Feb. 26, 1964.

Motions for Rehearing Denied April 1, 1964.

Strasburger, Price, Kelton, Miller & Martin, Dallas, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for petitioners.

Scarborough, Black Tarpley & Scarborough, Abilene, for respondents.

NORVELL, Justice.

Writ of error was granted in this case because we were of the tentative opinion that the closing argument of respondents' counsel to the jury constituted reversible error. After submission of the case upon briefs and oral argument, we adhere to our tentative opinion. The judgments of the District Court and the Court of Civil Appeals are reversed and the cause remanded to the District Court for another trial.

In the District Court, Mrs. W. S. Kendall and W. S. Kendall, Jr., as beneficiaries under the wrongful death statute, Article 4671, Vernon's Ann.Tex.Stats., and as the legal representatives of W. S. Kendall, recovered judgment against the defendants described in the judgment as 'Andrew Howsley and Charles E. Jacobs, individually and as members of the partnership of Howsley & Jacobs.' The Court of Civil Appeals affirmed. 364 S.W.2d 836.

,W. S. Kendall was severely burned in an explosion and fire which took place in the basement of the Andrew Howsley residence on the afternoon of March 7, 1961. As a result of these burns, Kendall died shortly after midnight on March 10th in a hospital located in Albany, Texas. The liability of Andrew Howsley and Charles E. Jacobs is predicated upon the theory that Robert Myers was their employee and that the explosion was caused by Myers' negligence. Kendall and Myers were the only persons present at the Howsley residence immediately prior to the explosion. Sharply conflicting versions of the events which occurred at that time were placed before the jury and the case may be properly described as a close one upon the facts.

The deceased, W. S. Kendall, was an electrician with a place of business in Cisco, Texas. Andrew Howsley is the father-in-law of Charles Jacobs and at the time of Kendall's death he and Jacobs were partners primarily engaged in the oil business. Robert Myers, a young man 24 years of age, was employed by Howsley & Jacobs to clean up oil lease locations of the partnership. He also worked around the houses of both Howsley and Jacobs, took care of their yards and rendered such other services as might be required by either of the partners.

The deceased, W. S. Kendall, was employed to remove two air compressors from the basement of the Howsley residence in Albany and take them to his shop in Cisco for inspection and repair. Howsley instructed Myers to be present when Kendall arrived and help him remove the compressors from the basement and load them onto Kendall's pickup truck. On the afternoon of March 7, 1961, Kendall and Myers removed the compressors from the Howsley basement. Then they noticed that some lubricating oil had spilled or leaked on the floor. Gasoline was poured upon the floor in an effort to remove the oil. Fumes from the gasoline came in contact with the flame of the pilot light on a water heater located in the basement, with the result that an explosion and fire took place.

Myers testified to matters which, if credited, would absolve him from culpability. The respondents' account was that Myers had carelessly used gasoline in cleaning the floor near the burning pilot light and had failed to warn Kendall of this circumstance. This version was pieced together from the testimony of witnesses who related to the jury what Kendall had told them before his death. In the main, these statements were received under an exception to the hearsay rule as being a part of the res gestae.

Robert Myers testified that he helped Kendall get the compressors out of the basement and load them on the truck; that in this process some oil was spilled upon the floor of the basement; that he and Kendall used some rags to wipe up the oil to start with; that Kendall decided that the dry rags would not clean up the oil satisfactorily; that Kendall said, 'We will have to clean up this oil off the floor or Mrs. Howsley will get us'; that Kendall asked him if he had any 'gas' and he (Myers) told Kendall that he could get some that he used in the lawn mower; that Kendall said that would be 'okey' so he got some gasoline in a red two-gallon can and Kendall said, 'We will put some on these rags and clean it up, wipe the oil off the floor'; that he, (Myers) 'did exactly what he told me to do'; that Mr. Kendall said that the 'gasoline wasn't cutting the oil so he (Kendall) poured a little on the floor; that then 'the fumes were getting kinda bad in there and (he) told (Kendall) that (he) would go upstairs and get some water and wash some of it out'; that 'the fumes were getting so bad (he, Myers) couldn't stay down there, so (he) started upstairs and the thing blowed up'; that he was at the top of the stairs when the explosion occurred; that the explosion was immediately followed by a fire; that he got a garden hose and shot water down on Mr. Kendall who was at the foot of the stairs; that he then went down the stairs so as to get a step or two closer to Mr. Kendall and caught his hand and pulled him out of the basement; that Mr. Kendall was on fire when he pulled him out; that he shot some water on him and used his hands to beat out the fire.

The respondents' (plaintiffs') version of the facts and circumstances immediately before the explosion and fire came primarily from the testimony of the witnesses W. S. Kendall, Jr. and the widow, Mrs. W. S. Kendall. In certain minor particulars they were corroborated by other witnesses. All of respondents' evidence as to the events leading up to the explosion and fire consisted of statements attributed to Mr. Kendall and related to the witnesses in the Albany hospital.

W. S. Kendall, Jr. came to the hospital shortly after his father arrived,-about 4:30 in the afternoon. He found that his father was suffering severe pain but was conscious. He testified that his father told him that some oil had been spilled on the floor out of the compressors and he had wiped it up with a rag; that Robert Myers had gone in there with some gasoline to clean the floor and that he didn't realize what he had used until he went back down there to see if he had left any tools and the whole place was afire.

Mrs. Kendall testified that she arrived at the hospital around 5:00 o'clock and went to her husband's hospital room where she found that 'he had been burned all over from the top of his head to his feet and his face was black and he was bandaged all over'; that she remained at the hospital until her husband died; that during this time Mr. Kendall's 'consciousness came and went.' She testified that her husband told her that 'he had taken the compressors out and put them in the pickup and while he was doing that, that Robert had put gasoline on the floor to clean it up and when he went back that he didn't know that any gasoline was there and he was afire before he knew what happened.'

We thus have a case in which one version was related by Robert Myers, the only...