Ricks v. Culp

• Decision Date: 05 November 1947
• Docket Number: No. 9656.,9656.
• Parties: RICKS v. CULP.
• Court: Texas Court of Appeals

Page 285

206 S.W.2d 285

RICKS v. CULP.

No. 9656.

Court of Civil Appeals of Texas. Austin.

November 5, 1947.

Rehearing Denied November 28, 1947.

Appeal from District Court, Fifty-Third District, Travis County; J. Harris Gardner, Judge.

Action by A. T. Culp against W. T. Ricks, doing business as the RicksTransfer & Storage Company, for fire damage to household furniture stored by defendant as warehouseman. Judgment for plaintiff, and defendant appeals.

Affirmed.

Smith & Pollard, by Harry S. Pollard, all of Austin, for appellant.

Looney & Clark, by Donald S. Thomas, all of Austin, for appellee.

McCLENDON, Chief Justice.

Culp sued Ricks for fire damage to household furniture stored with Ricks as warehouseman. Upon a special issue verdict Culp recovered $837.80 plus $73.50 interest. Ricks has appealed.

The fire was the same as that in Ricks v. Smith, Tex.Civ.App., 204 S.W.2d 12, error ref. NRE. In the instant appeal liability is based solely upon a finding of negligence in not having a night watchman within the building; other grounds of liability having been found favorably to Ricks. Ricks urges 10 points of error, the first 9 of which are briefed under two grounds: (1) those asserting that the evidence does not support findings that failure to have a night watchman inside the building was (a) negligence or (b) the proximate cause of the loss; (2) those asserting that the recovery was upon an improper measure of damages (value of the furniture to Culp). The 10th point complains of improper argument to the jury.

Contention 1-a is based upon evidence (assertedly uncontradicted) that it was not customary in the vicinity (Austin) for public warehousemen of household furniture to have night watchmen within their warehouses. This rule was announced in Whittington v. Cameron Compress Co., Tex.Civ.App., 268 S.W. 216 (affirmed, and this holding expressly approved in Compress Co. v. Whittington, Tex.Com.App., 280 S.W. 527): "While trade custom was admissible as evidence upon the issue of negligence, it did not afford a conclusive legal standard of conduct as constituting ordinary care." Cameron Compress Co. v. Jacobs, Tex.Civ.App., 10 S.W.2d 1040, 1042. A case practically on all fours factually with that at bar upon this issue is Tubbs v. Storage Co., Tex.Civ.App., 297 S.W. 670, error ref. The opinion was by Judge Alexander, writing for the Waco court, and cited the Whittington case and annotations in 16 A.L.R. 280 and 282.

The contention that the found negligence was not the proximate cause of the loss is based upon the assertion that there was no evidence to support a finding that the loss would or might reasonably have been prevented had there been a night watchman in the warehouse. The only evidence of the cause of the fire was circumstantial, pointing strongly, if not conclusively, to spontaneous combustion. Negligence in the origin of the fire finds no support in the evidence. The issue of proximate cause was therefore narrowed down to whether there was evidence to support a finding to the effect that had there been a night watchman within the building he would, in the exercise of ordinary care, have discovered the fire in time to have prevented the loss through available means. Briefly the evidence, in substance, on this issue was: The building was located at 214-216 West 4th Street, Austin. It was about 40 × 100 feet, the storage being in the basement, and was filled with furniture (except for the aisles), stacked about 6½ feet high. It was of brick construction and had only one window in the north end. There were several hand operated fire extinguishers in the warehouse. The fire was discovered and the alarm turned in to the fire department about 1:40 a. m. by a patrol policeman, who discovered the smoke about two blocks away on 5th Street, where there was a great deal of smoke. It was a comparatively still night, otherwise there would have been very little smoke. The patrolman erroneously reported the location of the fire as 105 West 5th Street. When the firemen arrived at the building there was too much heat and smoke in the basement for them to go in there, and a hole had to be cut in the floor so as to use a cellar nozzle. It took from 20 to 25 minutes under the circumstances to put out the fire. Ricks had an outside watchman employed to inspect this warehouse and another he operated at 411 East 4th Street. This watchman was also employed to carry the mail between the depot and the post office and made his inspections on his mail carrying trips at intervals between 7 p. m. and 4 a. m. On the night of the fire he made his regular inspection at 11:30 p. m., and when he made the next regular inspection at 2 a. m. the building was on fire. The chief engineer for the State Insurance Commission testified that a reduction in fire insurance premiums was given where there was a night watchman within the building, but there was no reduction for an...