Southland Industries v. O. R. Mitchell Motors

• Decision Date: 05 December 1951
• Docket Number: No. 12342,12342
• Citation: 244 S.W.2d 528
• Parties: SOUTHLAND INDUSTRIES, Inc. et al. v. O. R. MITCHELL MOTORS.
• Court: Texas Court of Appeals

Page 528

244 S.W.2d 528

SOUTHLAND INDUSTRIES, Inc. et al. v. O. R. MITCHELL MOTORS.

No. 12342.

Court of Civil Appeals of Texas, San Antonio.

Dec. 5, 1951.

Rehearing Denied Jan. 2, 1952.

John C. Hoyo, Horace P. Shelton, Jr., San Antonio, for appellant.

Boyle, Wheeler, Gresham & Davis, San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Southland Industries, Inc., against O. R. Mitchell Motors seeking to recover damages caused by fire to a building owned by plaintiff and situated at the intersection of North St. Mary's and Navarro Streets in the City of San Antonio. Recovery was sought both upon tort and contract liability. The tort liability was based upon the theory that the fire was negligently caused by the defendant, his agents and employees, and the contract liability was based upon the contention that defendant was liable for the damage caused by the fire under his written contract of lease of that part of the building in which the fire occurred. Plaintiff filed its third amended original petition in which it made the Standard Insurance Company of New York and the General Insurance Company of America parties plaintiff in the cause.

The trial was to a jury and, based upon the jury's answer to the special issue submitted, judgment was rendered that plaintiffs take nothing, from which judgment Southland Industries, Inc., Standard Insurance Company of New York and General Insurance Company of America have prosecuted this appeal.

Appellants' first point presents the contention that the court erred in striking out appellants' pleading setting up the doctrine of res ipsa loquitur. The evidence shows that the fire was caused in the following manner: That part of the second floor of the building which had been leased to appellee was used for an automobile repair shop. It was divided into two rows of stalls with an alley between. Different mechanics worked upon and repaired automobiles in these various stalls. The fire occurred on January 21, 1946, in the southeast corner of the second floor of that part of the building occupied by appellee. In the stall where the fire occurred a mechanic by the name of John Lewis was repairing an automobile. He duty was to remove the gasoline tank and replace it with a new one. The old tank had some eight or ten gallons of gasoline in it and this was first drawn out into an open top container and set a few feet back of the automobile. Lewis removed the old tank, but before placing the new tank on the automobile he had an urgent call of nature and went down on the first floor to answer this call. In the stall opposite that used by Lewis another mechanic by the name of L. M. Sifford was working. When he came to work that morning he found an auto belonging to one M. G. Gonzales already in his stall with a work sheet calling for him to repair the brakes upon this car. His orders were to repair an automobile only in the particular set out on the work sheet. Sifford repaired the brakes on the Gonzales automobile and backed it out of the stall in which he was working, for the purpose of driving it down the ramp and on to the first floor. According to Sifford's testimony, he had backed the car out of his stall and as far as he could go without entering the stall in which Lewis worked and had stopped, and was cutting his front wheels and preparing to shift gears, when his foot slipped off the clutch pedeal, which was worn on one side, thus causing the auto to lunge backward some three or four feet and strike the container in which was the gasoline, turning it over. The gasoline was thrown over a radiator in which there was an exposed open flame. Thus the gasoline was ignited and the fire and damage resulted. Sifford seized a fire extinguisher and attempted to put the fire out but was unsuccessful. He summoned the fire department and firemen were there within five minutes and extinguished the fire, but not until after the damages complained of had occurred. Appellant had plead in effect that the fire was occasioned by causing the gasoline to come in contact with the open blaze, and then plead 'res ipsa loquitur' in the fourth paragraph of its first amended petition, in the following language: 'Plaintiff further alleges that it does not propose to be bound by its specific allegations of negligence hereinabove contained, because the acts of negligence of the defendant, its agents, servants and employees, are more accessible and within the particular knowledge of the defendant, its agents, servants and employees, and are not accessible to the plaintiff; and plaintiff therefore, alleges that in the absence of the negligence of the defendant, its agents, servants and employees, said fire would not have occurred to said building, radiator and other equipment thereto pertaining, which had been leased to the defendant and was then and there under the exclusive management, control and possession of the defendant, its agents, servants and employees, and said fire could ordinarily have been averted by the taking of the customary precautions and preventive measures; and plaintiff, therefore, in the alternative relies on the doctrine, or...