McCane-Sondock Protection Systems, Inc. v. Emmittee

• Citation: 540 S.W.2d 764
• Decision Date: 19 August 1976
• Docket Number: CANE-SONDOCK,No. 4897,4897
• Parties: McPROTECTION SYSTEMS, INC., Appellant, v. James Roy EMMITTEE d/b/a Bedford Package Store, Appellee.
• Court: Texas Court of Appeals

Page 764

540 S.W.2d 764

McCANE-SONDOCK PROTECTION SYSTEMS, INC., Appellant, v. James Roy EMMITTEE d/b/a Bedford Package Store, Appellee.

No. 4897.

Court of Civil Appeals of Texas,

Eastland.

Aug. 19, 1976.

William C. Book, Tekell, Book & Matthews, Houston, for appellant.

Rokki Ford Roberts, Dunn & Roberts, Bellaire, for appellee.

RALEIGH BROWN, Associate Justice.

James Roy Emmittee d/b/a Bedford Package Store sued McCane-Sondock Protection Systems, Inc. for negligently installing a burglar alarm system at his business. After a jury trial, judgment was entered awarding Emmittee $6,839 damages. McCane-Sondock appeals. We affirm.

Appellant argues in five points of error there was no evidence to support the finding that it proximately caused the loss by failing to connect the wires leading from the hold-up button to the burglar alarm control panel and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Further, it contends there was no evidence or, in the alternative, insufficient evidence to support the finding that it proximately caused the damages in failing to test the system prior to leaving the premises of the store, and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Finally, appellant urges the trial court erred in entering judgment for $10,500 remitted to $6,839 because as a matter of law, the maximum amount Emmittee could recover was $25 based on the liquidated damage clause in the contract.

Appellant argues its action could not be a proximate cause of the loss suffered by Emmittee because it was the action of some third party which caused the loss.

The court in Teer v. J. Weingarten, Inc., 426 S.W.2d 610 (Tex.Civ.App., Houston (14th Dist.) 1968, writ ref. n.r.e.) said:

'. . . the Texas Courts are firmly committed to the proposition that the issue of foreseeability is related to the issue of proximate cause. It is also undoubtedly true, as a matter of substantive Texas law, that an intervening cause reasonably foreseeable by the defendant, is not such a new and independent cause as to break the chain of causation between the defendant's negligence and the injury complained of to the extent of relieving the defendant of liability for such injury. City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326; . . .'

It is established appellant failed to connect the wires leading from the hold-up buttons to the burglar alarm control panel and failed to test the system after installation of the alarm buttons.

In the instant case, Mrs. Emmittee and the store manager pressed alarm buttons to activate the system when a robber came into the store declaring 'it was a hold-up.' There was testimony that if the alarm had functioned the police would have been notified within 30 to 45 seconds. The police station was located only a couple of miles from the liquor store. The robber remained in the store five to ten minutes after the alarm buttons were pressed. We hold these facts constitute some evidence that Emmittee's loss was the proximate...