New Nueces Hotel Co. v. Sorenson

• Decision Date: 28 November 1934
• Docket Number: No. 1805-6282.,1805-6282.
• Citation: 76 S.W.2d 488
• Parties: NEW NUECES HOTEL CO. v. SORENSON et al.
• Court: Texas Supreme Court

76 S.W.2d 488

NEW NUECES HOTEL CO. v. SORENSON et al.

No. 1805-6282.

Commission of Appeals of Texas, Section A.

November 28, 1934.

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

Action by L. Sorenson against the New Nueces Hotel Company, Incorporated, and others, in which the Southern Surety Company of Iowa and New York was impleaded in a cross-action by named defendant against defendant Thrailkill and another, and in which Thrailkill filed a cross-action against defendant City of Corpus Christi, and in which defendant City of Corpus Christi filed a cross-action against the New Nueces Hotel Company. From an order of the Court of Civil Appeals [48 S.W.(2d) 365] reversing and rendering in part, affirming in part, and conditionally affirming in part a judgment for the plaintiff, L. Sorenson and the New Nueces Hotel Company prosecute separate writs of error.

Reversed and remanded.

Baker, Botts, Andrews & Wharton, Vinson, Elkins, Sweeton & Weems, C. R. Wharton, Palmer Hutcheson, and C. M. Hightower, all of Houston, for plaintiffs in error.

Sidney P. Chandler, Boone & Raymer, Allen V. Davis, and E. B. & Howell Ward, all of Corpus Christi, and Battaile & Dutton, of Houston, for defendant in error.

CRITZ, Commissioner.

This suit was instituted in the district court of Nueces county, Tex., by L. Sorenson against New Nueces Hotel Company, a private corporation, the city of Corpus Christi, a municipal corporation, and W. C. Thrailkill for damages alleged to have been sustained by him as the result of a gas explosion in the hotel building belonging to New Nueces Hotel Company in Corpus Christi, Tex., on May 13, 1929.

Sorenson's petition alleges, in substance, that at and prior to the explosion the hotel company owned and operated this hotel building, which was fully supplied with sewer and gas mains within and upon the hotel property. It is then alleged that east of the hotel building the city owned and operated a gas main in the street, and that adjacent thereto and east of the hotel building there was a sidewalk. It is then alleged that natural gas leaked from the city's gas main and was conducted under the above sidewalk through the earth into the basement of the hotel building. It is also alleged that the hotel company negligently permitted natural gas and sewer gas to accumulate in the basement of the hotel. It is alleged that the above gases exploded injuring Sorenson.

Sorenson's petition further alleges that Thrailkill entered into a contract with the hotel company to construct an annex thereto and that in the construction thereof he failed to provide proper ventilation in the basement. It is also alleged that in the construction work done by Thrailkill he made an excavation in the street of the city exposing the city's gas main, and that as the result of such excavation and the way it was filled the gas main cracked or broke, causing the gas to escape therefrom. This escaping gas is alleged to have gone into the basement of the hotel building.

The city is sued by Sorenson on the theory that it failed to properly inspect and keep in repair the above-mentioned gas main.

The hotel company answered Sorenson's petition and filed cross-action against the city, Thailkill, Southern Surety Company of Des Moines, Iowa, and Southern Surety Company of New York. The cross-actions against the city and Thrailkill were based on the theory of active and passive negligence. The two surety companies were bondsmen for Thrailkill on his annex construction bond, and the hotel company sued them on the theory that such bond protected it against any damages it should have to pay out to Sorenson on account of the break in the city's gas main caused by Thrailkill.

The city answered Sorenson's petition, and filed cross-actions against the hotel company, Thrailkill and the two surety companies on the theory of active and passive negligence.

Thrailkill answered Sorenson's petition, and filed cross-actions against the city and the hotel company on the theory of active and passive negligence.

The hotel company, the city, and Thrailkill all answered the various cross-actions against them respectively.

The two surety companies answered and defended the action of the hotel company against them.

The pleadings of the various parties, taken as a whole, are very long and complicated, comprising some 87 pages of the transcript. We do not pretend to have made a full statement of the contents of the pleadings of any of the parties, but we trust the one we have made is sufficiently correct and comprehensive to serve the purposes of this opinion.

The case was finally tried in the district court, where it was submitted to a jury on 42 special issues. On the jury's verdict returned on these issues judgment was rendered in favor of Sorenson against the hotel company, the city, and Thrailkill, jointly and severally, for $9,200. Judgment was rendered for the surety companies. We presume that the judgment of the district court disposed of all parties and issues, and was a final judgment.

The hotel company, the city, and Thrailkill appealed from the above judgment to the Court of Civil Appeals at San Antonio. On final hearing in that court the judgment of the district court against the city and Thrailkill was reversed and rendered in their favor. The judgment against the hotel company was affirmed for $5,000, after Sorenson had entered a remittitur of $4,200 at the suggestion of the court. The judgment of the district court for the two surety companies was affirmed. 48 S.W.(2d) 365, 366. The hotel company and Sorenson have prosecuted separate writs of error to this court. Both applications were granted.

It appears from the opinion of the Court of Civil Appeals that the jury found that "the explosion was caused by marsh gas, by sewer gas, by natural gas, by marsh gas and sewer gas combined, by marsh and natural gas combined, by sewer gas and natural gas combined, and by all the gases combined." The jury also found that each of these was the proximate cause of the explosion.

We interpret the opinion of the Court of Civil Appeals to hold that this record contains no evidence tending to show the presence of natural gas in the basement of the hotel building at and prior to the time of this explosion, and further to hold that the record contains no evidence tending to show that the natural gas escaping from the break in the city's gas main was being conducted into the basement of the hotel building. In response to such holdings the Court of Civil Appeals reversed the judgment of the district court against the city and Thrailkill, and rendered judgment in their favor. The hotel company and Sorenson assign the above rulings as error.

If, in regard to the above matter, the Court of Civil Appeals, after making a ruling of no evidence, had reversed and remanded, instead of reversing and rendering, we would allow such reversal and remand to stand, because in such instance we would presume that a court that would find no evidence would find insufficient evidence. Furthermore, if...