Independent Shope Brick Co. v. Dugger

• Decision Date: 23 June 1926
• Docket Number: (No. 686-4593.)
• Citation: Independent Shope Brick Co. v. Dugger, 285 S.W. 599 (Tex. 1926)
• Parties: INDEPENDENT SHOPE BRICK CO. v. DUGGER.
• Court: Texas Supreme Court

Page 599

285 S.W. 599

INDEPENDENT SHOPE BRICK CO. v. DUGGER.

(No. 686-4593.)

Commission of Appeals of Texas, Section B.

June 23, 1926.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by W. L. Dugger against the Independent Shope Brick Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (281 S. W. 600), and defendant brings error. Affirmed.

W. L. Eason and Sleeper, Boynton & Kendall, all of Waco, for plaintiff in error.

John McGlasson and Weatherby & Rogers, all of Waco, for defendant in error.

POWELL, P. J.

The nature and result of this suit in the trial court have been admirably stated by the Court of Civil Appeals in an able opinion by Chief Justice Gallagher. See 281 S. W. 600. It is not necessary for us to restate the case at length. The nature of the suit is summarized by the Court of Civil Appeals, as follows:

"This is a suit instituted by W. L. Dugger, appellee herein, to recover of Independent Shope Brick Company, appellant herein, damages alleged to have been suffered by reason of the failure of certain building brick to conform to the warranty of quality made in the sale of the same to him. The parties will be designated as in the trial court. There was a trial before a jury. The case was submitted on special issues, and a verdict thereon duly returned. The court entered judgment on such verdict in favor of plaintiff against the defendant for the sum of $8,000, from which judgment defendant prosecutes this appeal."

The Court of Civil Appeals affirmed the judgment of the district court.

The writ of error herein was granted "on the first error assigned." That assignment, and its accompanying proposition, read as follows:

"I. The honorable Court of Civil Appeals erred in holding as a matter of law that the answer and finding of the jury in answer to defendant's special issue No. 2, to the effect that the injury to the house complained of in this action could not be repaired without material damage to such house, precluded plaintiff in error from insisting that the damages in this cause be restricted to the cost of repairing the defects, for the reason that such answer of the jury was contrary to the uncontradicted evidence and unsupported by any evidence. Upon this holding the Court of Civil Appeals erroneously affirmed the judgment of the trial court in favor of plaintiff in error, and herein the Court of Civil Appeals committed an error of law of such importance to the jurisprudence of the state as to require correction by the Supreme Court. This error is complained of in assignment 9a in plaintiff in error's motion for rehearing.

"Proposition.

"In an action for damages for breach of warranty in the sale of brick used in the construction of a brick residence, where the uncontradicted evidence of the plaintiff himself was that the defects could be cured by stuccoing the house on the outside at a cost of from $1,200 to $1,500, and the only damage to such residence in such case would be a matter of taste, a finding of the jury to the effect that such defects could not be cured without material damage to the building is contrary to the uncontradicted evidence, and is unsupported by the evidence. (Appellant's proposition No. 1 under assignments of error Nos. 9, 10, and 11 — Appellant's brief, pp. 30, 31.)"

The defendant in error submits two counter propositions under aforesaid assignment, as follows:

First. "Plaintiff in error having requested the court to submit to the jury a special issue as to whether or not defendant in error could have repaired his house so as to prevent the dampness from penetrating the inner walls without material damage to the building, and the court having submitted same at its request, and the jury having answered same, plaintiff in error is bound by the answer, and cannot complain on appeal that the answer was unsupported by the evidence."

Second. "The testimony of defendant in error to the effect that some one had told him that he could have his house stuccoed and that he would then have no further trouble with it was without probative force, the defendant in error not being an expert in building, the testimony being hearsay, and not being sufficient to overcome a jury finding to the contrary."

We think the first counter proposition must be sustained. The plaintiff in error itself requested the trial court to submit to the jury the following special issue (No. 2):

"Could plaintiff have repaired his house so as to prevent the dampness from penetrating the inner walls without material damage to the building? Answer `Yes' or `No.'"

While a party, having requested the submission of a special issue to a jury, might complain that the jury's answer was against the great weight of the testimony (a question not before us in this case and which we do not decide), it seems perfectly clear, under our decisions, that he is estopped to claim there is no evidence in the record raising that issue. This is the uniform holding of our Supreme Court and the various Courts of Civil Appeals. The reason for the rule is apparent. Counsel for defendant in error, in this connection, cite the following authorities, which sustain their first counter proposition aforesaid: Poindexter v. Receivers, Kirby Lumber Co., 101 Tex. 322, 107 S. W. 42; P. & G. N. R. R. Co. v. Flanders, 107 Tex. 326, 179 S. W. 263; Hanrick v. Hanrick, 110 Tex. 59, 173 S. W. 211, 214 S. W. 321; St. L., B. & M. Ry. Co. v. West, 62 Tex. Civ. App. 553, 131 S. W. 839; Blair v. Nueces River Valley R. Co. (Tex. Civ. App.) 143 S. W. 713; Am. Const. Co. v. Caswell (Tex. Civ. App.) 149 S. W. 282; Vesper v. Lavender (Tex. Civ. App.) 149 S. W. 377; T. & B. V. Ry. Co. v. Smith (Tex. Civ. App.) 155 S. W. 361; Shear Co. v. Smith (Tex. Civ. App.) 250 S. W. 727; Just v. Herry (Tex. Civ. App.) 174 S. W. 1012; Wade v. First Nat. Bank (Tex. Civ. App.) 263 S. W. 654; S. Chester Tube Co. v. Texhoma Oil (Tex. Civ. App.) 264 S. W. 108; Firemen's Ins. Co. v. Havron (Tex. Civ. App.) 277 S. W. 742.

We quote as follows from the opinion of Justice Williams in the case of Poindexter v. Receivers of Kirby Lumber Company, supra:

"All of the assignments presented for reversal in the Court of Civil Appeals have been examined, and we find that all of them, aside from that on which the judgment was reversed, were properly overruled, and all of them, save one, sufficiently discussed. That one complains of the submission, in the charge of the trial court, of the issue of negligence, vel non, with respect to the condition of the belt for want of evidence to sustain a recovery upon that issue. If there was error in this, it was one in which the defendants participated. We find in the record a special charge asked and given at their request in which both grounds of recovery...