Orkin Exterminating Co. v. Schorsch

• Decision Date: 31 December 1968
• Docket Number: No. 14734,14734
• Citation: 436 S.W.2d 422
• Parties: ORKIN EXTERMINATING COMPANY, Inc., Appellant, v. Henry SCHORSCH, Jr., Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 422

436 S.W.2d 422

ORKIN EXTERMINATING COMPANY, Inc., Appellant, v. Henry SCHORSCH, Jr., Appellee.

No. 14734.

Court of Civil Appeals of Texas San Antonio.

Dec. 31, 1968.

Rehearing Denied Jan. 29, 1969.

Tom Joseph, Arch B. Haston, San Antonio, for appellant.

Lang, Cross, Ladon, Oppenheimer & Rosenberg, G. Thomas Coghlan, San Antonio, for appellee.

BARROW, Chief Justice.

Appellant, by three assignments of error, complains of a judgment rendered on a jury verdict in appellee's suit for damages in the stipulated sum of $625.00, resulting from a fire in the central heating and airconditioning unit of appellee's home, allegedly caused by the negligence of appellant's agent.

Appellant's first two points urge that the trial court erred in overruling its motion for an instructed verdict, since there was no evidence, or insufficient evidence of probative force, to support the submission of issues to the jury as to whether said agent turned off the blower switch of said unit or whether he failed to turn said switch back on prior to his departure from appellee's attic. We doubt that these two points are properly before us, in that they were urged in a motion for instructed verdict made at the close of appellee's evidence, but were not re-urged in a second motion made after appellant had introduced evidence and both parties closed. It has been held that a defendant waives a motion for instructed verdict made after plaintiff rests, when defendant elects not to stand on said motion but proceeds to introduce additional evidence. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.); Travelers Ins. Co. v. Arnold, 378 S.W.2d 78 (Tex.Civ.App.--Dallas 1964, no writ); Robb v. Gilmore, 302 S.W.2d 739 (Tex.Civ.App.--Fort Worth 1957, writ ref'd n.r.e.); Castelo v. Castelo, 89 S.W.2d 1033 (Tex.Civ.App.--El Paso 1936, writ dism'd).

In any event, these points are without merit when the record is reviewed under the 'no evidence' test as required by points complaining of the denial of a motion for instructed verdict. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). There is expert testimony that the fire in appellee's heating and air-conditioning unit was caused by the blower switch on said unit being off. If the blower switch is off, the heat elements in the unit will overheat, short out and cause a fire. There was no direct testimony that appellant's agent, Joe Cazarez, touched the switch when he was in appellee's attic about fourteen hours before the fire, but the circumstantial evidence supports such an inference.

On February 16, 1966, appellee entered into a written contract with appellant, represented by its agent Cazarez, whereby appellant agreed to treat appellee's house monthly. Appellee and his wife advised Cazarez at this time that they were having particular trouble with mice under the kitchen sink and in the attic. The attic in appellee's house is reached through a folding ladder which is pulled down from a bedroom ceiling by a ten-inch cord. Appellee took Cazarez into the attic on February 16, 1966, and explained that Cazarez was not to fool with the blower switch which was an ordinary wall switch attached to one of the ceiling joists near the attic entrance. The blower switch and a light in the attic were on the same circuit and appellee explained that the light should be turned off and on by screwing the globe in and partly out of the socket.

Nothing was stored in the attic but the central unit and therefore it was seldom entered. Both appellee and his wife testified no one entered the attic between February 16 and Cazarez' second service call on March 16, 1966. There was direct testimony from appellee, confirmed by his wife, that the heating unit including the blower unit worked satisfactorily between February 16 and Cazarez' next service call. On this call, which was made about 11:00 a.m., Cazarez was seen to enter the attic, although neither appellee nor his wife accompanied him. About 2:00 a.m. the following morning, appellee and his wife were awakened by the sound of fire sometime after Mrs. Schorsch had heard the heating unit start. When the firemen entered the...