Labadie v. Hawley

• Decision Date: 19 February 1884
• Docket Number: Case No. 1795.
• Citation: 61 Tex. 177
• Parties: JOSEPH LABADIE v. T. J. HAWLEY.
• Court: Texas Supreme Court

61 Tex. 177

JOSEPH LABADIE

v.T. J. HAWLEY.

Case No. 1795.

Supreme Court of Texas.

Feb. 19, 1884.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Hawley brought this suit against A. Watts and appellant Labadie for the recovery of damages alleged to have accrued in the injury to the premises occupied by him, and his merchandise therein, by reason of excessive heat and smoke caused by hot fires made and continuously kept up by Watts and appellant in a cooking range or oven alleged to have been erected by them upon premises in the city of Galveston, alleged to be in their occupancy and use as a restaurant, and adjoining the premises of which appellee was the lessee and occupant, and in which he carried on business as a dealer in tobacco, cigars, etc.

Watts admitted the occupancy of the premises as a restaurant and the erection of the cooking range or oven, denied the injury, and pleaded contributory negligence on the part of plaintiff.

Labadie's amended original answer adopted as his own the answer of his co-defendant Watts, excepting Watts' admissions.

Verdict against plaintiff for Watts and for plaintiff against Labadie for $200. Judgment for plaintiff against Labadie, in accordance with the verdict, and that plaintiff take nothing by his suit as against Watts. Labadie filed a motion for a new trial, which was overruled.

Labadie testified in substance: “The premises occupied by Watts belong to Mrs. Borstow. I never occupied the premises and never owned any interest in them, and never had any interest in Watts' business. I have been Mrs. Borstow's agent to collect her rents. I collect her rents and send her the money. I did not build the range, nor use it nor keep it heated. I had no interest in Watts' business. I leased the premises to Watts for a restaurant. I authorized him to build the range, and saw it in course of construction and while in use. I assess the property for taxes and pay them as agent for Mrs. Borstow. I leased to Watts without consulting Mrs. Borstow. He holds from month to month.”

Trezevant & Franklin, for appellant, cited: 1 Addison on Torts, 247; Wood's Land. and Tenant, p. 918, sec. 539; Ewings v. Jones, 9 Md., 108; Dicey on Parties, 424, 463, rule 103; Ewell's Evans on Agency, 329; Story on Agency, 309; Bell v. Josselyn, 3 Gray, 309.

STAYTON, ASSOCIATE JUSTICE.

The only matter necessary to be considered is the action of the court below in overruling the appellant's motion for a new trial.

It appears that the appellant was not the owner of the property on which the alleged nuisance existed; that he had no interest in the cooking range or business in which it was operated; and that he was only the agent of the owner of the real estate on which the cooking range was erected and operated by his co-defendant.

It appears that he rented the property to his co-defendant and authorized him to erect the range, and saw it while in course of construction and since, and that he has declined to compensate his codefendant for removing it to some other part of the house.

Neither the renting of the house nor the construction of the range has operated the injury of which the appellee complains. Whatever injury the appellee has received has resulted from the operation of the range by Watts; and if the appellant is responsible for his act, it must be on the sole ground that he has not done something which he, as agent, might have done, and not on the ground that by any act of his has injury resulted to the appellee.

The rule in...