Magnolia Petroleum Co. v. Long, 1556-6357.

• Decision Date: 09 October 1935
• Docket Number: No. 1556-6357.,1556-6357.
• Citation: 86 S.W.2d 450
• Parties: MAGNOLIA PETROLEUM CO. v. LONG.
• Court: Texas Supreme Court

Page 450

86 S.W.2d 450

MAGNOLIA PETROLEUM CO. v. LONG.

No. 1556-6357.

Commission of Appeals of Texas, Section B.

October 9, 1935.

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

Action by F. A. Long against the Magnolia Petroleum Company. A judgment for the plaintiff was affirmed by the Court

of Civil Appeals [51 S.W.(2d) 426], and the defendant brings error.

Judgment affirmed.

George R. Gillette, of San Antonio, and W. H. Francis, A. S. Hardwicke, Walace Hawkins, and Russell Surles, all of Dallas, for plaintiff in error.

Perry J. Lewis, H. C. Carter, Champe G. Carter, Randolph L. Carter, and P. H. Long, all of San Antonio, for defendant in error.

RYAN, Commissioner.

F. A. Long filed this suit in the district court of Bexar county against the Magnolia Petroleum Company, to recover damages for personal injuries alleged to have been sustained by him while crossing a drive-in way over the sidewalk, used, operated, and maintained by the company as an approach to one of its filling stations.

It was alleged that said drive-in way was not constructed, operated, or maintained in accordance with certain provisions of an ordinance of the city of San Antonio (copied in haec verbae), that same created a servitude upon said drive-in way or sidewalk, which the company failed to maintain in a safe condition, that the company negligently caused and permitted water, grease, and oil to be upon said drive-in way, making the same slippery, which directly caused and contributed to cause the plaintiff to slip and fall while walking over said drive-in way over the sidewalk, by reason of which plaintiff received severe and permanent injuries, his right leg broken and fractured near the hip, a rupture on the right side, shock to the nervous system, injuries to his kidneys and bladder, his hearing, from which he suffers continual pain.

The injuries are alleged to have occurred on or about February 9, 1929.

The defendant excepted generally and specially to the petition, pleaded a general denial, and specially that defendant began the occupation of said filling station in the year 1923, after the construction of said sidewalks and driveways, under lease, continuing to this time, from William L. Richter, the owner of said property, that said sidewalk or driveway, if defective, existed in a public place for which the city of San Antonio is responsible, and while the curbing was cut down to permit automobiles to drive from the street into the filling station, this was done under the city's permission, as was also the slant, grade, or angle of the driveway; that plaintiff was walking, going northward on the east side of South Laredo street, when, having reached the point opposite where the driveway or approach into the filling station leaves the street and connects with the sidewalk, plaintiff stepped onto the slanting approach for vehicles, at which time a customer of the filling station had been filling the radiator of his car with water from a hose, the car and hose being on the premises occupied by the filling station, "the engine of the car being very hot, said customer permitted a small quantity of water to boil over out of the radiator and to fall down onto the cement floor of the filling station, thence trickling out upon the sidewalk, and from the sidewalk upon the cement driveway or approach situated between said sidewalk and the curb or gutter line of said street; that there was no grease or oil on the sidewalk or driveway, but that wholly unknown to defendant or its employees, said small stream of water had run upon and spread over and wet the sidewalk and driveway to a width of about one foot"; that this was during the daylight hours, the wet strip was of darker color, and plaintiff should have seen it, but negligently stepped onto said wet strip and thereupon slipped and incurred whatever injuries he may have suffered; that said driveway or approach was not intended for pedestrians, but for vehicles, and plaintiff was negligent in attempting to use same; that if he had used due care he would have avoided "stepping off onto said wet place on said slanting driveway, the slanting character of which, as well as said wet place being then and there visible to any person using ordinary care." The special answer continues "and defendant further alleges on information and belief that at the time of said occurrence plaintiff was wearing shoes with heels of rubber, or some material which becomes slippery when applied to wet surfaces, and when the heel or heels of plaintiff's shoes came in contact with said wet places on said driveway, said heels of slippery material caused or contributed to said accident, whereby plaintiff was injured, and when wearing such slippery heels, he stepped off said sidewalk onto said wet strip on said slanting driveway, he was guilty of negligence." Said special answer continues further: "Plaintiff slipped and fell in the day time and was negligent in not noticing where he stepped; by reason of the aforesaid facts and circumstances plaintiff was guilty of contributory negligence and each and all of the aforesaid acts of negligence on plaintiff's part caused and contributed to his said accident and injury."

Trial of the cause began on October 5, 1931, and concluded on October 10, 1931, with the submission of special issues to a jury, upon whose findings judgment was rendered for plaintiff, Long, in the sum of $8,000.

Opinion.

1. It is contended by plaintiff in error that the Court of Civil Appeals, in affirming the judgment below, 51 S.W.(2d) 426, 427, did not comply with article 1873, Rev. Stat. 1925, which requires the filing of conclusions of fact and law upon each material point assigned as error in that court, nor with article 1876, Rev. Stat. 1925, requiring all issues presented by proper assignments to be decided and announcement in writing made of the conclusions so found. Morris v. Jackson (Tex. Com. App.) 296 S. W. 486, is cited to sustain such contention. In that case it appears that no opinion was rendered by the Court of Civil Appeals including its conclusions of facts and law, and Judge Bishop, of the Commission of Appeals, said that the provisions of article 1873 are mandatory; however, he considered the other assignments of error in the case. Here one of the justices of the Court of Civil Appeals did write an opinion and file conclusions of fact and law, but plaintiff in error says that his two associates did not concur therein, and therefore it is ineffective as a compliance with the law, in that one of the justices indorsed the opinion thus: "I concur in the judgment of affirmance," and the third justice wrote: "I merely concur in the result."

The challenged opinion concludes: "We have gone over and carefully considered all the questions raised, and find no error committed that should cause a reversal of the judgment, and it is affirmed," which, of course, represents the unanimous opinion of that court, as to the affirmance, although the reasons given in the opinion may not have been satisfactory to all its members.

Where writ of error is granted, the Supreme Court may consider all questions of law properly presented and requisite to a correct decision of the case. Moore v. Davis (Tex. Com. App.) 27 S.W.(2d) 153; Harris County v. Charlton, 112 Tex. 19, 243 S. W. 460, 245 S. W. 644; Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185.

We shall therefore consider all such questions of law as may be properly presented in the application for writ of error.

2. After the cause had been on trial for three days, and after plaintiff had rested and defendant had offered testimony until noon of the fourth day, defendant presented motion to withdraw its announcement of ready for trial and grant a continuance, on the ground that one J. O. Conner had furnished it with his statement dated March 4, 1929, to the effect that on the afternoon of Long's injury he (Conner) drove into defendant's filling station and filled the radiator of his car with water from the hydrant near portecochére, when the water boiled over and ran out on the driveway, spreading out on the driveway as a thin sheet of water about 12 or 14 inches wide; that Long slipped in such wet place, striking his right hip, when he (Conner) with Mr. Winn, the company's agent, went to Long's assistance, and that Long's heel tracks where he slipped plainly showed outside of the outside line of sidewalk. That after the defendant had offered testimony and other witnesses sent for, said Conner informed defendant that his testimony would be adverse to the defendant's contentions as to the cause of the accident, and that he would have to testify that some of the pipes at defendant's filling station had frozen the night before and water was escaping therefrom across the sidewalk involved, upon which water plaintiff slipped. The motion further stated that the first information defendant had of such purported testimony was elicited from one of defendant's own witnesses by the plaintiff on cross-examination immediately prior to the noon recess on the day said motion was filed.

Defendant claimed surprise, that it has filed no other motion for continuance, that the application is not made for delay, but that justice may be done, and concludes as follows: "Defendant believes that if given sufficient time, it will be able to secure testimony to support the allegations of its first amended answer which has heretofore been based upon the testimony of the witness Conner."

Said motion to withdraw announcement and continue the case was overruled by an order entered in the minutes of the court, but no formal bill of exceptions on the subject appears in the record.

It is contended by plaintiff in error that the question should be reviewed in the absence of such bill, under authority of article 2237, Rev. Stat. 1925, which, so far as applicable, reads as follows: "If either party during the progress of a cause is...