Morten Inv. Co. v. Trevey

• Court: Texas Court of Appeals
• Writing for the Court: Vaughan
• Citation: Morten Inv. Co. v. Trevey, 8 S.W.2d 527 (Tex. App. 1928)
• Decision Date: 19 May 1928
• Docket Number: (No. 10098.)
• Parties: MORTEN INV. CO. v. TREVEY et al.

8 S.W.2d 527

MORTEN INV. CO. v. TREVEY et al.

(No. 10098.)

Court of Civil Appeals of Texas. Dallas.

May 19, 1928.

Rehearing Denied July 14, 1928.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Claude M. McMallum, Judge.

Suit by W. S. Trevey against the Morten Investment Company, in which defendant interposed a cross-action against the American Railway Express Company. From an adverse judgment, defendant first named appeals. Affirmed.

Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.

Robertson, Robertson & Gannon, Wallace & Taylor and Carden, Starling, Carden & Hemphill, all of Dallas, for appellees.

VAUGHAN, J.

This suit was brought by appellee, W. S. Trevey, against appellant. Morten Investment Company, a private corporation, in the court below to recover damages for personal injuries alleged to have been received by him through certain acts of negligence charged to have been committed by appellant, viz.: That, while said appellee was riding upon a freight sidewalk elevator belonging to appellant, the elevator fell, causing him to be seriously injured, and that the fall of the elevator was due directly and proximately to the negligence of the appellant, in that said appellant was negligent, "* * * in that it used the said elevator when the same was in bad order and out of repair, and in that it failed to inspect the said elevator, or to exercise ordinary care so to do, and in that it failed to exercise ordinary care to repair the same."

Appellant answered by general demurrer, a general denial and specially pleaded to the effect: First, that the elevator was of standard make, and that it exercised ordinary care in selecting the elevator and in putting it in operation, and that, if there was any defect in the materials thereof, the company was not an insurer of the elevator or the materials thereof, and was not liable; second, that, if the appellee Trevey was injured, his injuries were the direct and proximate result of the acts and conduct of persons who were not agents, representatives, or employees of appellant, but were employees of American Railway Express Company, a private corporation, and one of the appellees; third, that the employees of the appellee railway express company negligently dropped or pushed a heavy box from a truck onto the elevator, breaking the cogs in the wheels or other device in the elevator which operates it up and down, causing the elevator to give way and fall; fourth, that the dropping of the box on the elevator by appellee express company, and the breaking and disabling of the elevator, was the direct, sole, and proximate cause of appellee Trevey's injuries, and that the appellee express company was the active perpetrator of the wrong, and prayed that the appellee railway express company be made a party defendant, and, in the event appellee Trevey should recover judgment against appellant, that it have a like judgment over against the appellee express company.

The appellee express company filed a plea in abatement because of a misjoinder of parties defendant, and because of a misjoinder of causes of action, and, subject to that plea, and without waiving it, filed its answer pleading a general demurrer, special exceptions pointing out the misjoinder of parties and of causes of action, and a general denial. The said pleas in abatement were overruled. To this ruling of the court appellee express company duly excepted. Thereafter the general demurrer and special exceptions of said appellee were presented to the court and each overruled, to which action of the court said appellee duly excepted. At the conclusion of the introduction of all the evidence, appellee express company presented to the court its motion to instruct the jury to return a verdict in its favor, and also presented a demurrer to the evidence. The requested peremptory instruction was refused, but the court sustained the demurrer to the evidence. In refusing to give the peremptory instruction, the court gave as a reason "because of sustaining a demurrer to the evidence, which the court feels is, under all the circumstances, the better way to effect the same result." Thereupon the trial proceeded as between appellee Trevey and appellant. Special issues were submitted to and answered by the jury as follows:

"Special issue No. 1: Do you find and believe from the evidence that, in the unloading of the boxes by the American Railway Express Company upon the elevator in question, at the time testified about, they struck such elevator with sufficient force or violence to break the cogs in the wheels or other device in the elevator which operates it up and down, and that this was the direct, sole and proximate cause of the falling of the elevator? Answer `Yes' or `No.' Answer: No.

"If you have answered special issue No. 1 in the affirmative, you need not answer the following questions, but, if you have answered special issue No. 1 in the negative, or by `No,' then you will answer the following questions:

"Special issue No. 2: Was the defendant's elevator out of repair immediately prior to the time the express company placed the boxes of meat on it? Answer `Yes' or `No.' Answer: Yes.

"Special issue No. 3: Was the defendant negligent in not discovering, prior to plaintiff's injury, the defective condition, if any, of its elevator? Answer `Yes' or `No.' Answer: Yes.

"Special issue No. 4: Was the defendant negligent with reference to the matter of repairing the defective condition, if any, of its elevator? Answer `Yes' or `No.' Answer: Yes.

"Special issue No. 5: What sum, if paid now, will reasonably compensate plaintiff for his diminished capacity, if any, to labor and earn money in the past, if there has been any in the past, and in the future, if you find there will be any in the future, and his physical and mental suffering in the past, if there has been any in the past, and in the future, if you find there will be any in the future, resulting directly and proximately from the negligence, if any you have found, of the defendant, Morten Investment Company upon the occasion in question? Answer: $12,500."

Appellant filed its motion for judgment to be entered in its favor on the findings of the jury; likewise appellee Trevey filed his motion to the same effect. Appellant's motion was overruled, appellee's sustained, and, on February 19, 1927, judgment was rendered on said verdict in favor of appellee Trevey against appellant for the sum of $12,500, with interest thereon at the rate of 6 per cent. per annum from January 5, 1927, together with all costs of suit, and in favor of appellee express company on the cross-action filed by appellant. From this judgment, appellant duly perfected its appeal.

The findings, in response to the special issues submitted, being supported by the evidence, are adopted as facts found by this court, and, in addition thereto, other findings of fact will be made in the course of the discussion of the propositions upon which this appeal is predicated.

By its first and second propositions, appellant contends (a) that under the state of the pleadings between appellant and appellee express company, said appellee's plea in abatement having been overruled, that it was error for the court to permit the entire trial to proceed and at the close of the introduction of the evidence to sustain appellee express company's demurrer to the evidence offered by appellant upon the same ground that the plea in abatement was offered; and (b) that it was error to sustain said demurrer because same admitted all facts of which there was any evidence, and all conclusions which could fairly and logically have been drawn therefrom, there being evidence in the reecord tending to establish such facts, and from which such conclusions could be drawn, as the very issue as to whether or not the dropping of the boxes broke the elevator and caused the accident was submitted to the jury.

As we view this theory of the case, even if it should be conceded that the proof introduced in reference to the falling of the elevator established the issue presented by appellant's cross-action against appellee express company, as to the cause of the falling of the elevator, the only legal effect that could have been given thereto would have been that there was thereby established a complete bar to the right of appellee Trevey to recover against appellant on the ground of negligence alleged by said appellee Trevey as constituting his cause of action and right to recover thereon against appellant without any right of recovery by appellant against appellee express company, as appellee Trevey could not recover, either against appellant or appellee express company on the grounds of negligence alleged by appellant against appellee express company as being the proximate cause of the falling of said elevator. However, the evidence clearly established that the falling of the elevator was not caused by the acts of negligence alleged by appellant in its cross-action to have been committed by appellee express company, but, to the contrary, clearly demonstrated that the falling of the elevator was due to the acts of negligence alleged by appellee Trevey against appellant. Under the state of appellee Trevey's pleadings, appellant could only make out a case of recovery on its cross-action against appellee express company by showing that, if the elevator was caused to fall by the acts of negligence alleged by appellee Trevey against appellant, appellant was only passively guilty of such acts of negligence, and that appellee express company was actively guilty of the acts of negligence so alleged—in other words, the principal actor in the commission of the acts of negligence so alleged by appellee Trevey. Appellant's cross-action against appellee express company was predicated upon the allegation that an employee of the express company dropped a heavy box on the elevator and broke it, causing it to fall and hurt app...