Renfro Drug Co. v. Lewis

• Decision Date: 06 December 1950
• Docket Number: No. A-2638,A-2638
• Citation: 149 Tex. 507,23 A.L.R.2d 1114,235 S.W.2d 609
• Parties: , 23 A.L.R.2d 1114 RENFRO DRUG CO. et al. v. LEWIS.
• Court: Texas Supreme Court

Page 609

235 S.W.2d 609

149 Tex. 507, 23 A.L.R.2d 1114

RENFRO DRUG CO. et al. v. LEWIS.

No. A-2638.

Supreme Court of Texas.

Dec. 6, 1950.

Rehearing Denied Feb. 7, 1951.

Hart, Brown & Sparks, Austin, J. H. Hart, Austin, for petitioner Renfro Drug Co.

Coleman Gay, Austin, for petitioner Capital Nat. Bank.

Ralph W. Yarborough and Will Mann Richardson, Austin, for respondent H. L. Lewis.

Looney, Clark & Moorhead, Everett L. Looney, Graves & Dougherty, and Ireland Graves, all of Austin, for respondent Edward Joseph.

CALVERT, Justice.

H. L. Lewis sued Renfro Drug Company, a corporation, Edward Joseph, doing business as Motoramp Garage, and the Capital National Bank in Austin, a corporation, for the recovery of damages for personal injuries sustained in a fall through a doorway leading from Motoramp Garage into Renfro Drug Store. The defendants in the trial court will be referred to in this opinion as Renfro, Joseph or Motoramp, and Bank.

Trial was to the court without the intervention of a jury, and at the conclusion thereof the court entered judgment denying to plaintiff Lewis any recovery against Joseph, granting to Lewis a recovery of $22,256.26 against Renfro and Bank, jointly and severally, granting to Renfro a recovery over against Bank by way of indemnity of any sum or sums it should pay or cause to be paid in satisfaction of the judgment in favor of Lewis, and denying to Bank and Renfro any recovery over against Joseph either by way of contribution or by way of indemnity. Lewis did not perfect an appeal from that portion of the judgment denying him a recovery against Joseph. Both Renfro and Bank perfected appeals from that portion of the judgment awarding Lewis a recovery against them and from that portion of the judgment denying them a recovery over against Joseph. In addition Bank perfected its appeal from that portion of the judgment awarding Renfro a recovery over against Bank by way of indemnity.

The Court of Civil Appeals disagreed with the trial court's judgment of nonliability of Joseph to Lewis; but, since Lewis did not appeal from that portion of the judgment, considered Joseph liable to Lewis only for the purpose of determining whether Joseph as a joint tort-feasor should be required to indemnify Bank or contribute, under the provisions of Art. 2212, to the payment of the judgment. The court proceeded to affirm the judgment in favor of Lewis against Renfro and Bank; but, holding that Joseph had no control over the premises where the injuries occurred, denied both Renfro and Bank any recovery over against Joseph for any portion of the judgment. The court also disagreed with that portion of the trial court's judgment which required Bank to indemnify Renfro and reformed that portion of the judgment so that each, Bank and Renfro, were required to contribute equally to the payment of the judgment. Tex.Civ.App., 228 S.W.2d 221. Both Renfro and Bank filed petitions for writs of error and both petitions were granted.

Before this court Renfro has abandoned its claim to contribution from Joseph but Bank, by appropriate points of error, has preserved its right to press its claim against Joseph for indemnity and, alternatively, for contribution.

The questions raised here for our determination by points of error of one or the other of the petitioners may be stated generally as follows:

(1) That there was no evidence to sustain the implied finding of the trial court that either Renfro or Bank was guilty of actionable negligence proximately causing plaintiff's injuries;

(2) That the evidence shows conclusively, as a matter of law, that plaintiff Lewis was guilty of contributory negligence which was a proximate cause of his injuries; and

(3) The respective liabilities of Joseph, Renfro and Bank to each other.

No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court's judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

The following statement of the facts, for the most part unchallenged here, is adopted from the opinion of the Court of Civil Appeals:

'Mr. Lewis was injured on March 26, 1948. He was then a resident of Marta, Texas, and 68 years old. While on the way to visit Dr. W. P. Morgan, who officed in the Capital National Bank Building, he sustained his injuries.

'The Bank owned the premises occupied by the Motoramp, Renfro's the office building, and the bank. They are located on the north side of West Seventh Street in Austin. Commencing on the west is the Motoramp Garage, a public storage garage, adjoining on the east is Renfro's Drugstore, and adjoining the drugstore on the east and connected by two doors, is the elevator lobby of the office building, and to the east and adjoining are the Bank's quarters. West Seventh Street, where these buildings are, declines rather sharply from west to east, the fall being 45 inches in the half block occupied by these buildings. There is an opening, a door, between the garage and the drugstore. * * *

'The door is of solid metal, weighing approximately 225 pounds. (Note: A picture of the door is shown in the opinion of the Court of Civil Appeals). While the picture shows the door open it is ordinarily closed and was closed when Mr. Lewis opened it to enter the drugstore. This door is kept closed by a standard closing device called a door check. The door has on it three signs. At the top and at about eye level of the average adult is the sign, 'Caution, Watch Your Step.' The sign is in red letters of about 3 in height on a white background. Then, the sign, 'Renfro No. Two, Prescription Pharmacy,' appears. Below this, and not visible in the picture, is a smaller sign, reading 'Watch Step.'

'This door opens into the drugstore and away from the garage and opens directly over the steps, there being no platform inside the drugstore on the same level as the garage floor. The first step taken from the garage to the drugstore is down the height of the top step or riser which is 8 1/2 , and the next step or riser down to floor level of the drugstore is 8 1/8 , or a total difference in floor levels between the garage and the drugstore of 17 1/4 . There is probably a half inch variation in these measurements due to the worn condition of the edges of the step. The width of the tread or step was 17 .

'Also, to be noted is the fact that this door is recessed from 12 to 14 in the garage side of the wall. * * *

'Mr. Lewis was on his way to visit Dr. Morgan when he was injured. He had been to see Dr. Morgan before, and on one such occasion while he parked his car in the motoramp he did not see or use the door pictured above, which constitutes an exit from the motoramp and an entrance to Renfro's as well as a 'short cut' or passageway to the elevator lobby of the Bank's office building.

'On the day of the accident Mr. Lewis drove his car into the Motoramp Garage and stopped his car in the driveway on the extreme east side of the garage and immediately west of the partition wall. He then stepped upon a safety island immediately west of the driveway and waited there approximately one or two minutes before the garage attendant gave him a claim check for his car. The driveway is approximately twelve feet in width and the safety island is located across the driveway from the door into the drugstore.

'Mr. Lewis had intended after parking his car to go out the front of the Motoramp Garage to Seventh Street and then to enter the elevator lobby from the street. While waiting for his claim check, however, he saw a man go through the door from the garage into the drugstore, and he observed while the door was open that it was an entrance into the drugstore. He then decided that he would use the door and go through the drugstore to the elevator lobby.

'By the time the garage attendant handed him a claim check for his car, the car immediately ahead of his had been moved, and one of the garage employees had entered his car in order to move it from the driveway to storage. When Mr. Lewis received his claim check the garage employee in his car motioned for him to pass in front of his car toward the door to the drugstore, which he did.

'The front of Mr. Lewis's car was stopped about 4 feet north of the north edge of the door into the drugstore, so in passing in front of this car he must have been at least the same distance north of the door when he started walking down the wall to the door. He kept close to the wall because of cars passing and in order to protect himself from the danger of being hit.

'In approaching the door in this manner, Mr. Lewis did not observe the signs on the door or the fact that the door was solid. On reaching the door he grabbed the handle of the door, presumably with his left-hand, and pushed inwardly and, in the words of Mr. Lewis:

"When I turned the knob and pushed the door open and started through, as I went into the drugstore, the door snapped back, and my feet slipped from under me, and everything from there went black. The next thing I found myself lying out in the floor when I came to myself." (Tex.Civ.App., 228 S.W.2d 223).

To require either Renfro or Bank to respond in damages to Lewis it must, of course, appear that they violated some duty of care which they owed him under the circumstances. We are met at the threshold of our consideration of the case by the contentions of Renfro and Bank, separately urged, that at the time of his injury Lewis was no more than a licensee on the premises and that there is no evidence that either violated any duty of care they owed him. We will...