Seamless Floors by Ford, Inc. v. Value Line Homes, Inc.

• Decision Date: 28 February 1969
• Docket Number: No. 17000,17000
• Parties: SEAMLESS FLOORS BY FORD, INC., Appellant, v. VALUE LINE HOMES, INC., et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 598

438 S.W.2d 598

SEAMLESS FLOORS BY FORD, INC., Appellant, v. VALUE LINE HOMES, INC., et al., Appellees.

No. 17000.

Court of Civil Appeals of Texas.

Fort Worth.

Feb. 28, 1969.

Rehearing Denied March 21, 1969.

Strasburger, Price, Kelton, Martin & Unis, and Royal H. Brin, Jr., Dallas, for appellant.

Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellee, Sherman Electric Co.

Heard L. Floore and Richard U. Simon, Jr., Forth Worth, for appellees, Value Line Homes, Inc., and others.

OPINION

MASSEY, Chief Justice.

Value Line Homes, Inc., et al. were plaintiffs in the trial court. Among these were plaintiffs Buchanan Brothers, Inc., a corporation, and M. D. Buchanan and his brother who do business as such corporation, a general building contractor. The other plaintiffs were those for whom a certain complex of buildings were being constructed by Buchanan, to one of which there had been loss and damage due to fire occurring during the course of its construction. Objective of plaintiffs' suit was to obtain a judgment for damages against defendants based upon allegation that they were guilty of negligence amounting to proximate cause of the fire in question and were liable in damages because of the loss therefrom resulting.

Not originally a party to the suit, but a real party at interest, was International Service Insurance Company. This company had paid the amount of the fire loss to or in behalf of those of the plaintiffs thereto entitled. It was stipulated that under principles of subrogation any recovery by plaintiffs, at least to the extent of said company's payment under its policy of insurance would enure to the benefit of said company. The company was, by order of the court, made a party plaintiff upon a defendant's plea in abatement.

The defendants were two of the subcontractors under Buchanan, the general contractor. Said defendants were Seamless Floors by Ford, Inc., a corporation, and Sherman Electric Company, a corporation.

Pursuant to verdict returned by a jury a judgment was rendered for plaintiffs, originally named, against the defendant Seamless Floors by Ford, Inc. The judgment denied any recovery by plaintiffs against Sherman Electric Company, and also denied the prayer of Seamless Floors against Sherman Electric for contribution and indemnity.

Seamless Floors by Ford, Inc. appealed as against all plaintiffs and Sherman Electric Company.

Affirmed.

The verdict of the jury, upon which judgment was rendered, found Seamless Floors guilty of negligence amounting to proximate cause of the fire in question because of its failure to use a blower fan in the hallway of the building where the fire occurred. There is no complaint by Seamless Floors that there was any want of evidence to support the verdict. We make mention that the jury, by answers returned, refused to find that Sherman Electric installed defective wiring in the area in the building where the fire started, or that it installed defective switch or switches in the portion of the building in which the fire began. There is no complaint on the appeal of the jury's action in refusing to make such findings. The jury also found that the fire was not the result of unavoidable accident.

At the beginning of the trial the attorney for plaintiffs, Buchanan, et al., and the attorney for defendant Sherman Electric consulted together in making their strikes from the panel of jurors summoned. In other words each struck his list of jurors with knowledge as to the identities of those struck by the other, and--presumably--so that there would be no strike of the same person in the elimination of prospective jurors who might otherwise have been empaneled as members of the petit jury.

Of the foregoing Seamless Floors complains in two ways, firstly because of the fact of the occurrence, and secondly because the trial court refused to allow it to bring the fact of the occurrence before the jury in the form of evidence. It is claimed that the jury's knowledge would bear upon the credibility and weight of witnesses' testimony, and in particular would permit the jury to give consideration to any interest that a witness might have in connection with the litigation. It is pointed out that in connection with a traction company/railroad company collision the defendant railroad company was held to be entitled to show that the traction company had made settlements with several passengers who were injured, and who testified in the case favorably to the traction company and unfavorably to the railroad company, as having a bearing upon the credibility of their testimony.

We perceive no evidence of error in the fact that there was consultation of presumably adverse counsel upon jury selection, absent something in supplement demonstrative of harm thereby enuring to Seamless Floors. Here there was nothing to demonstrate any such harm.

As applied to the trial court's refusal to permit evidence of the fact of the occurrence we believe we may properly hold that even if there was any error incident thereto it would be harmless error within the purview of Texas Rules of Civil Procedure 434, 'If Judgment Reversed'. The only testimony to which the complaint could have application was that from M. D. Buchanan, whose evidence was upon the matter of damages resultant from the fire and Earl D. Sherman, whose evidence had relation to the physical conditions before and after (but not at the time of) the fire, and procedures incident to the performance of the electrical subcontract. Both were disclosed to be parties interested in the outcome of the suit and for that reason their credibility would be for the jury. In light of the whole record it could not reasonably be said that knowledge by the jury of the fact of the consultation (through attorneys) in the selection of the jury, and the striking of separate panel members so that there would be no common strike was either calculated to cause or probably caused members of the jury to agree to return a verdict other than that which they would have returned had they been informed thereof.

In the 'instructions' given the jury in the court's charge, was contained the following: 'You are instructed that any fact may be established by circumstantial evidence or direct evidence, or both. * * * A fact may be established by circumstantial evidence when such fact is fairly and reasonably inferred from other facts proved in the case.' Seamless Floors filed written request that the court submit to the jury the following special instruction: 'You are instructed that the mere happening of an event is no evidence of negligence', which special instruction was refused by the trial court. Seamless Floors founds a point of error on the refusal of the trial court to give such instruction to the jury in connection with its charge as to circumstantial evidence.

Under the evidence in the record we perceive no insufficiency or deficiency in the charge, or in the instructions which were a part thereof, which would require that the specially requested instruction...