Lottman v. Cuilla

• Decision Date: 04 December 1925
• Docket Number: (No. 8718.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LOTTMAN v. CUILLA et al.
• Court: Texas Court of Appeals

Page 519

279 S.W. 519

LOTTMAN v. CUILLA et al.

(No. 8718.)^*

Court of Civil Appeals of Texas. Galveston.

December 4, 1925.

Rehearing Denied January 21, 1926.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by Nellie May Cuilla against E. J. Lottman, in which defendant impleaded the City of Houston as cross-defendant. From a judgment for plaintiff against defendant and a judgment sustaining cross-defendant's general demurrer, defendant appeals. Affirmed.

Stewart, De Lange & Milheiser, of Houston, for appellant.

H. H. Cooper and Frank Williford, Jr., both of Houston, for appellees.

LANE, J.

This suit was brought by Nellie May Cuilla against E. J. Lottman, to recover the sum of $14,500 as damages, alleged to have been suffered by her by reason of the negligent construction and maintenance of a sidewalk by Lottman, in front of certain property owned by him in the city of Houston, Tex.

For cause of action, plaintiff alleged substantially that, prior to and on the 6th day of January, 1923, defendant was the owner of certain property situated at the southeast corner of Lamar and Caroline streets in the city of Houston; that before the date, above mentioned, there was constructed and maintained along and in front of the properties fronting on Lamar street, between Austin street and Caroline street, a level cement sidewalk about 3 feet wide, which was on an even grade, but that defendant, desiring to construct an automobile garage and to utilize the space between the curb and his property line, removed that part of the above-mentioned sidewalk in front of his property, and constructed the same so as to use the space lying between the curb and his property for his own use and benefit, and so as to provide an entrance from Lamar street into his garage; that, in pursuance of such desire, he removed the former level sidewalk in front of his property, and, in doing so, he broke off the original sidewalk on the line between his property and the property lying just east of his property in such a careless and negligent manner as to leave a rough jagged edge on the broken sidewalk where the same joined his property line, on the east; that, having so broken said sidewalk, and having removed the same from in front of his property, he constructed the sidewalk and pavement in front thereof, about 10 or 11 inches below the original sidewalk, and thereby left or caused to be left an abrupt step-off from the same to his newly constructed sidewalk of about 10 or 11 inches; that the broken sidewalk was carelessly and negligently left, by defendant, jutting out, without a support in the nature of a shelf; that defendant knew that the sidewalk as he had broken and left it constituted a dangerous pitfall to pedestrians using the same; that the leaving of the sidewalk in such dangerous condition was wantonly done in absolute disregard of the safety of such persons as might use the same; that defendant failed to maintain a light or any signal or device to warn persons who might use the sidewalk of its dangerous condition in which he had left it.

Plaintiff further alleged that, by reason of the careless and negligent acts of defendant, above stated, she was caused to fall and suffered mental pain and anguish and physical pain and permanent injury, to her damage in the sum of $14,500. She alleged that the careless and negligent acts of defendant, stated above, were the direct and proximate cause of her injuries.

"The defendant answered by pleas in abatement, to the effect that the sidewalk was laid and repaired under the supervision of the city of Houston, and, subject to such plea filed a general demurrer and special exceptions, and, subject to such pleas, he filed a general denial, and specially denied that any act or omission of his caused any damage or injury to plaintiff, or that the sidewalk was constructed or maintained by the defendant in an unworkmanlike manner, and alleged that same was placed and constructed in a good and workmanlike manner under the supervision of the city of Houston and its engineering department. Defendant further alleged that the injury, if any, of plaintiff, was caused by her own negligence, in carelessly and negligently walking upon the sidewalk and adjacent the sidewalk without watching where she was going, and other acts of contributory negligence, and, in the alternative, that it was caused by inevitable accident, and not by any act or omission of the defendant Lottman, and impleaded the city of Houston as cross-defendant. The city of Houston answered by general demurrer and general denial. Defendant, Lottman, filed a trial amendment, more particularly alleging negligence on the part of the city of Houston and notice of claim of injury to said city. The general demurrer of the city of Houston to the defendant's (Lottman's) answer and cross-action and trial amendment was sustained, and said cross-action dismissed."

The above is quoted from brief of appellant.

The cause was tried before a jury, which, in answer to special issues submitted, found: First, that plaintiff was injured on or about the 6th day of January, 1923, on Lamar avenue, near Caroline street, in the city of Houston, by a fall on the sidewalk; second, that defendant, Lottman, did cause a sidewalk to be built in front of his property; third, that defendant did construct or cause to be constructed a sidewalk in front of his property on Lamar street in such manner as to leave a rough and jagged step-off from the adjoining sidewalk, that such construction was negligence, and was a proximate cause of plaintiff's injury; fourth, that defendant was guilty of negligence in allowing the sidewalk to remain in such manner, as to leave a rough and jagged step-off, and that such negligence was a proximate cause of plaintiff's injury; fifth, that plaintiff did not walk upon the sidewalk adjacent to the sidewalk in front of the property at the corner of Lamar and Caroline streets without watching where she was going.

Following the questions indicated by the foregoing answers of the jury, the court submitted the following question and instruction:

"What amount of money, if paid at this time, would justly and fairly compensate plaintiff for such injuries, if any, that she may have sustained as a proximate cause of her injuries, if any?

"In estimating such damages, you will take into consideration only the following elements: (a) Physical pain and mental anguish; (b) any sum or sums of money, if any, that she has lost in the past on account of such injuries, if any; (c) such sum or sums as she may lose in the future on account of her diminished earning capacity as a result of said injuries, if any.

"The amount of your verdict will be the aggregate of the above elements, if you find that there is any damage, and you will answer same by stating the amount in dollars and cents. * * *

"You are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given their testimony; the law you are bound by your oaths to take from the charge of the court as herein given you and be guided thereby.

"Let your verdict be signed by your foreman."

To the question last mentioned, the jury answered: "$5,500." Upon the answers of the jury, the court rendered judgment in favor of the plaintiff against defendant for the sum of $5,500. From the judgment so rendered, and from the judgment sustaining the general demurrer of the city of Houston, defendant, Lottman, has appealed.

We shall first dispose of appellant's contention that the court erred in sustaining the general demurrer of the city of Houston and dismissing it from the suit. This contention cannot be sustained. In 20 R. C. L. § 17, p. 678, the following rule is announced:

"Joint tort-feasors may be sued jointly or severally at the election of the party injured. * * * This is on the principle that every person who joins in committing a tort is severally liable for it, and cannot escape liability by showing that another person is liable also; nor can one of a number of tort-feasors compel the plaintiff to sue him jointly with other persons with whom he has joined in committing the tort. There is an exception to this rule where the liability for the tort complained of grows out of ownership of real estate held jointly or in common. In such a case, where the proprietors of the land have neglected a duty incident to their title, all should be joined as defendants."

One tort-feasor, against whom a recovery has been had by the injured party, cannot compel others who joined with him in the commission of the tort for which he was held liable to contribute to the satisfaction of the judgment rendered against him. In other words, one tort-feasor cannot be made to respond in damages to another tort-feasor, who joined him in the commission of the tort for which he has been made to respond in damages. So, since the plaintiff in the present suit has not chosen to sue the city of Houston as a joint tort-feasor with appellant, if such it is, appellant has no right to have said city made a party defendant over its objection.

We are therefore of opinion that the court did not err in sustaining the general demurrer of the city. We are also of opinion that there is no pleading on the part of the appellant showing that the city had in any manner, either separately or jointly, committed or participated in the tort complained of by the plaintiff.

Appellant's next contention for reversal is that the court erred in not instructing a verdict in his favor upon his request for such instruction, in that there was no evidence that he owned or controlled any property, or any sidewalk, at the place where the plaintiff alleged she received her injury, or that such injury occurred on, or in front of any premises owned by him, or that he was negligent in any respect in repairing or maintaining of any sidewalk, or that he changed or caused to be changed, in any manner any...