Morton v. Burton-Lingo Co., 1851-7597.

• Decision Date: 09 April 1941
• Docket Number: No. 1851-7597.,1851-7597.
• Citation: 150 S.W.2d 239
• Parties: MORTON et al. v. BURTON-LINGO CO.
• Court: Texas Supreme Court

Page 239

150 S.W.2d 239

MORTON et al. v. BURTON-LINGO CO.

No. 1851-7597.

Commission of Appeals of Texas, Section B.

April 9, 1941.

Rehearing Denied April 30, 1941.

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

Action by Mrs. B. Morton and others against the Burton-Lingo Company to recover damages for the death of the named plaintiff's husband allegedly resulting because of a defect in porch which was at the head of stairway which plaintiff and her husband necessarily used in reaching their apartment in building owned by defendant. To review a judgment of the Court of Civil Appeals, 126 S.W.2d 727, reversing a judgment of the district court for the plaintiffs, the plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed.

Scarborough & Ely and Edmund Yates, all of Abilene, for plaintiffs in error.

Smith & Eplen, of Abilene, and George Faust, Horace E. Moore, and Cummings & Johnson, all of Fort Worth, for defendant in error.

SLATTON, Commissioner.

This is a suit brought by Mrs. B. Morton and others to recover damages for the death of E. H. Morton, deceased, against Burton-Lingo Lumber Company. Judgment in favor of Mrs. Morton et al. was reversed and the cause remanded by the Eastland Court of Civil Appeals. 126 S.W. 2d 727. This court granted a writ of error.

The Honorable Court of Civil Appeals sustained a general demurrer of the Burton-Lingo Lumber Company to the trial pleadings of Mrs. Morton et al. In granting the writ this court entertained the opinion that the pleading was good as against a general demurrer. A full statement of the pleadings is contained in the opinion of the Court of Civil Appeals. In passing upon a general demurrer every reasonable intendment arising upon the pleadings excepted to shall be indulged in favor of its sufficiency. Rule 17 governing procedure in District and County Courts. Applying that rule to the pleadings in review, we are of the opinion that Mrs. Morton stated a good cause of action on the theory that: "A building consisting of a number of different apartments is divided among several tenants, each one of whom takes a distinct portion, and none of them rent the entire building, the rule must then be applied so as to make each tenant responsible only for so much as his lease includes, leaving the landlord liable for every part of the building not included in the actual holding of any one tenant." O'Connor v. Andrews, 81 Tex. 28, 16 S. W. 628, 629. (Our italics)

It is true that the pleading excepted to may be vulnerable to many special exceptions, but none were urged. Under the every reasonable intendment doctrine the authorities cited by the Court of Civil Appeals (126 S.W.2d loc. cit. 732) sustain the view that a good cause of action was stated.

The Honorable Court of Civil Appeals held the following argument made by one of the counsel was reversible error: "There is some old rotten lumber which is down under the bottom. Burton-Lingo Lumber Company, it appears, the defendant, has gone there sometime or other and painted over that old rotten timber, evidently knowing at the time they did that it was rotten, because there it was and it might look pretty to somebody who might not have known it all the time and had not known they had covered it up with a little paint. That is the situation."

Upon objection made by the lumber company, it was sustained by the trial court and the jury was instructed not to consider the argument for any purpose. After the instruction by the court the lumber company insisted that there was no evidence that the lumber company had painted over the rotten timbers and that the argument constituted reversible error, notwithstanding the trial court's instruction. The bill of exception presenting this matter was qualified by the trial judge as follows: "The plaintiff had offered in evidence the wood that was in the platform. The wood was very rotten. Defendant had offered in evidence some pictures of the platform. The plaintiff's attorney was discussing and holding up in his hand what the defendant had offered in evidence and was talking about what the...