Owens v. L. J. Miles Const. Co.

• Decision Date: 27 May 1960
• Docket Number: No. 16106,16106
• Citation: 336 S.W.2d 189
• Court: Texas Court of Appeals
• Parties: R. D. OWENS and Owens & Brumley Funeral Home, Appellants, v. L. J. MILES CONSTRUCTION COMPANY, Appellee.

Page 189

336 S.W.2d 189

R. D. OWENS and Owens & Brumley Funeral Home, Appellants, v. L. J. MILES CONSTRUCTION COMPANY, Appellee.

No. 16106.

Court of Civil Appeals of Texas, Fort Worth.

May 27, 1960.

Crowley, Wright, Miller & Garrett, and James E. Wright, Fort Worth, for appellants.

Cantey, Hanger, Johnson, Scarborough & Gooch, and John McBryde, Fort Worth, for appellee.

BOYD, Justice.

L. J. Miles Construction Company recovered judgment for $1,000.00 against R. D. Owens and Owens & Brumley Funeral Home for damages to an automobile caused by a falling tree which had been standing on defendants' premises adjacent to their parking lot, which lot they maintained in connection with their business as funeral directors. Defendants appeal.

J. J. Miles drove appellee's automobile to the funeral home, his purpose being to transact business with appellants in connection with the funeral of a relative. He parked the car on the parking lot in one of the places for parking designated by lines. Before the business transaction was finished, and during a storm, and tree fell across the car, causing the damages complained of.

According to the jury findings, the tree was in a defective condition immediately prior to its fall; appellants knew, or by the exercise of ordinary care should have known, of such defective condition of the tree; they were negligent in permitting the tree to remain standing adjacent to the parking lot, which negligence was a proximate cause of the damages; they were negligent in failing to caution Miles, at the time he parked the car, about the defective condition of the tree, which was a proximate cause; they were negligent in failing to warn him, after he entered their place of business, to move the car from the vicinity of the tree, which was a proximate cause; the falling of the tree was not an Act of God; and appellee's damages were not the result of an unavoidable accident.

By their first two points appellants say that it was error to ask the jury in issue No. 1 if the tree was in 'a defective condition,' because such issue was not raised by the pleadings, and was too general, abstract, and vague, amounted to a general charge, failed to confine the jury's deliberations to the pleadings and evidence, and the finding left the court and evidence, and out guidance as to the grounds upon which the finding was based. They also complain of the submission of the companion issues based upon an affirmative answer to No. 1.

The pleading on which appellee went to trial, as originally filed, alleged that on the date in question the tree was and for a long time prior had been decayed and rotten and likely to fall, and constituted a hazard and menace to persons and property in its vicinity, all of which was well known to appellants, and that appellants were negligent in the following particulars: '(a) In allowing and permitting said tree to remain on their premises in a decayed and rotten condition and in the vicinity of the parking lot to which they invited their customers to park their automobile;' and '(b) In allowing and permitting said tree, in the condition it was in on and before July 6, 1956, to remain adjacent to the parking lot to which they invited their customers to park their automobiles.'

Appellants excepted to allegations (a) and (b) 'for the reason that the allegations contained in each such sub-paragraph are basically identical, and if read to the jury will result in undue and unwarranted emphasis being placed upon such allegations of negligence to the prejudice of Defendants.' The court sustained the exception to the extent of striking allegation (a). It would seem that after such ruling, allegation (b) remained in the petition without exception. We think the petition, as it remained after the exception was sustained, constituted a sufficient predicate for the submission of special issue No. 1. Coleman v. Texas & Pac. Ry. Co., Tex.Civ.App., 241 S.W.2d 308, error refused; Goldman v. Engel, Tex.Civ.App., 250 S.W. 303; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; Texas & New Orleans R. Co. v. Hayes, 156 Tex. 148, 293 S.W.2d 484; Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877; Freeman v. Wilson, Tex.Com.App., 222 S.W. 551.

Appellants say that it was error to submit issue No. 7, which asked if appellants were negligent in failing to warn J. J. Miles, after he had entered their place of business, to remove the car from the vicinity of the tree. No. 8 asked if such negligence, if any, was a proximate cause of appellee's damages. Appellants say that issue No. 7 presumed the existence of a reason for warning, yet the condition of the tree was a controverted issue, and that therefore it was a comment on the weight of the evidence; and, further, that such issue was included in issue No. 5, which asked if appellants were...