Mabry v. Lee, 6147

• Decision Date: 20 November 1958
• Docket Number: No. 6147,6147
• Citation: 319 S.W.2d 125
• Parties: Bob MABRY and Joe Mabry D/B/A Beaumont Machine Works, Appellant, v. Nathaniel LEE, Appellee.
• Court: Texas Court of Appeals

Page 125

319 S.W.2d 125

Bob MABRY and Joe Mabry D/B/A Beaumont Machine Works, Appellant, v. Nathaniel LEE, Appellee.

No. 6147.

Court of Civil Appeals of Texas, Beaumont.

Nov. 20, 1958.

Rehearing Denied Dec. 31, 1958.

Keith, Mahaffy, McNicholas & Weber, Beaumont, for appellant.

Phillip Bordages, Beaumont, for appellee.

ANDERSON, Justice.

During the afternoon of April 6, 1955, while playing in Charles Thompson's backyard, apparently with some of the Thompson children, Nathaniel Lee, Jr., who lived nearby and who was then but seven years of age, acting of his own volition, climbed a chinaberry tree in quest of chinaberries. A limb of the tree broke under his weight and he fell to the ground, striking his head against a piece of scrap iron or some other metal object which lay there. He sustained personal injuries, and this suit for damages resulted.

Young Lee's father, for himself and as next friend of his minor son, brought the suit. He sued Bob and Joe Mabry, who owned lots adjoining Thompson's premises. Thompson, in whose yard the tree stood and in whose yard it is claimed the youth fell, was not sued.

The suit was predicated upon the theory, generally speaking, that the defendants owned the metal object on which young Lee struck his head and were responsible for its being where it was, either through having placed it there or through having failed to remove it.

The Mabrys, who together operated a general machine shop upon their premises in the name of Beaumont Machine Works, kept a considerable quantity and variety of metal objects and perhaps also some scrap iron stacked or piled or spread on their premises near the line that divided their property and Thompson's. No fence or other barrier separated the two properties and none surrounded the Mabry metal.

Whether so pled or not, the case was tried upon the theory that some of the metal, including the piece against which young Lee struck his head, protruded from the Mabry premises over onto the Thompson premises. It was also tried upon the theory that the limb that broke was on Thompson's side of the property line, though only slightly so.

The respects in which the defendants were charged in the plaintiffs' petition with having been negligent were these: '(a) In failing to place a guard or fence around the piles of scrap iron located on the premises; (b) in failing to warn the minor plaintiff of the danger incident to the playing upon of said piece of scrap iron; (c) in failing to remove said pieces of scrap iron from the particular place in question.'

A trial before the court, without a jury, resulted in a judgment that the senior Lee take nothing, but that young Lee recover of the Mabrys, jointly and severally, the sum of one thousand dollars. The Mabrys, and they alone, appealed.

Mabry Foundry and Machine Company, a corporation, was also named in the plaintiffs' petition as a defendant, but we infer from the record as a whole that it was not served with citation, did not answer, and therefore never actually became a party to the suit. And it is upon such inference that we are exercising jurisdiction of the appeal. If in reality the facts were otherwise, it is improbable that a final and appealable judgment was rendered in the case, since the judgment does not appear to have made disposition of said company.

Claiming that the points do not meet the requirements of the briefing rules, appellee objects to our considering either of the two points of error brought forward by appellants in their brief. But, while the points are unorthodox in form, we have concluded that when considered together with the statements and arguments that accompany them they should be treated in this instance as raising the proposition that the judgment of the trial court is without...