Rick Furniture Co. v. Smith

• Citation: 202 S.W. 99
• Decision Date: 09 February 1918
• Docket Number: (No. 7903.)
• Parties: RICK FURNITURE CO. v. SMITH.
• Court: Court of Appeals of Texas

Page 99

202 S.W. 99

RICK FURNITURE CO. v. SMITH.

(No. 7903.)

Court of Civil Appeals of Texas. Dallas.

February 9, 1918.

Rehearing Denied March 23, 1918.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by J. A. Smith against the Rick Furniture Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Muse & Muse, of Dallas, for appellant. Geo. Clifton Edwards, of Dallas, for appellee.

TALBOT, J.

The appellee sued the appellant to recover damages for personal injuries received through the negligence of appellant. The appellant is a private corporation engaged in the sale of furniture and porch swings. In due course of business it sold to appellee such a swing, and hung the same on the porch of appellee's residence in his absence. The swing was rather heavy, about 4½ feet long, with arms and high back, and made to hang from a ceiling by chains and hooks. The porch where the swing was hung was ceiled, and the ceiling joists were 1×4 timbers. There is no proof that these timbers were defective. On the contrary, it appears that they were sound and suitable for the purpose intended, and were such as are often used in small cottages, such as appellee's was, and ample to support the swing. Shortly after the swing was hung, and while being used in the ordinary way by appellee it fell, resulting in the breaking of appellee's leg. The fall of the swing did not result from the breaking or giving way of the joist. It resulted from the pulling out of one of the supporting hooks that had been screwed through the ceiling of the porch and into the joists. This hook had not been put straight in the center of the joist and solid wood, but was put in by appellant's agent crooked, and too near the edge of the joist, and evidently by guess. The other hook, which was put in the same joist, went practically straight into the solid wood, and did not pull out, but remained firm.

Appellee alleged that he bought the swing in response to the offer of appellant to deliver and hang same safely at his residence for the purchase price, namely, $4.50; that said offer was made in express terms at appellant's place of business, and likewise in implied terms by appellant by advertisements widely circulated; that appellant expressly and also impliedly, by said advertisement and by said sale at its regular place of business, warranted to appellee that it would hang said swing safely at appellee's residence; that by and through its authorized agent, acting within the scope of his employment, appellant did hang the swing, alone selecting the place on the front porch of appellee's residence. The appellee in a separate count of his petition further alleged that appellant was guilty of negligence, in that it did not employ careful and competent employés to put up the swing, that its employés who put up the swing did not use that degree of care that ordinarily prudent, cautious, and competent persons would use under the same or similar circumstances in hanging the swing, but did hang said swing in a careless, negligent, and unsafe manner, and that said negligence directly and proximately caused and contributed to cause the fall of the swing and appellee's injuries; that said swing as so erected by appellant did not constitute a safe appliance such as appellee contracted for, but did constitute an unsafe and dangerous appliance that was a real and veritable trap for appellee, when he endeavored to use it in a proper and careful manner, which he was doing at the time it fell.

Appellant answered by general denial, and specially that it advertised the swings for sale, and advertised to hang them free of charge to the purchaser, but said advertisement formed no part of any contract of sale with purchasers of such swings, and that the free hooks and free hanging of swings for each purchaser when desired, as advertised, was but a gratuity or contribution to purchaser, and wholly without consideration, and that the hanging of the swing and furnishing of the hooks therefor was a gratuity by the appellant to the appellee in his said purchase of the swing; that the swing was hung by it with ordinary care on appellee's porch; that the rafters in the porch were concealed by the ceiling timbers, and that the rafters of the porch were defective and insufficient to sustain the swing, and which defects were concealed from it by the porch ceiling; that the appellee was charged with notice of all of such defects, and assumed all risks under the gratuity aforesaid. It denied liability, and alleged that the negligent use of the swing by the appellee contributed to the accident.

Twenty-one assignments of error are found in the brief, but many of them present in different form the same question. They will not, therefore, be taken up and discussed in detail. Appellant first complains of the court's action in refusing to give a special charge directing the jury to return a verdict in its favor. The proposition is:

That "the petition basing the right of recovery upon breach of warranty to safely hang the swing as a part of the consideration of the sale of the swing and the evidence showing the hanging of the swing to be free of charge and a gratuity by the appellant, the petition does not support the judgment; that the averment of the cause of action based upon breach of contract and warranty is not supported by a liability arising upon a gratuitous service."

The peremptory instruction requested was correctly refused. The appellee did not rest his case alone upon the allegation that appellant had breached its warranty to safely hang the swing. He alleged, independently of that claim, that appellant, having agreed to hang...