Steger v. Barrett

• Decision Date: 23 December 1909
• Citation: 124 S.W. 174
• Parties: STEGER et al. v. BARRETT.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

124 S.W. 174

STEGER et al. v. BARRETT.^†

Court of Civil Appeals of Texas.

December 23, 1909.

Rehearing Denied January 13, 1910.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by W. L. Barrett against J. P. Steger and others. From a judgment for plaintiff, defendants appeal. Affirmed.

On October 14, 1908, certain buildings and personal property therein, owned by appellee and located on certain premises leased by him for a term of years from the true owner, were destroyed by fire. He sued appellants for their value, claiming that they negligently and wrongfully entered as trespassers on his premises, and, over his continued objection and without his consent at and before the injury, located and operated thereon a traction steam engine, which was not equipped with any spark arrester or other reasonably sufficient means to prevent the escape of fire or sparks therefrom, and negligently operating the engine caused it to emit fire and sparks, which set fire to and destroyed his property. Appellants answered by general denial, plea of contributory negligence, and a want of liability because the injury was not caused by their act, but by the act of an independent contractor. The case was tried to a jury, and upon their special findings a judgment was entered for appellee.

The findings of the jury on all issues of the case being adverse to appellants, and their findings being supported by sufficient testimony in the record, we are bound by such findings, as being within the function of the jury. As found by the jury, and such findings here are sustained in deference to their verdict, the appellee's property was destroyed by fire by means of sparks emitted from the traction steam engine wrongfully placed at the time on appellee's premises by appellants, and negligently equipped, as having no spark arrester or other reasonably safe means of preventing the escape therefrom of live sparks, and negligently operated in such condition by appellants through their servant, Jim James, in charge thereof. The appellants, as found by the jury and supported by the evidence, at the time of the injury were upon appellee's premises, and had stationed and were operating for their benefit and use the traction engine in question thereon, without appellee's consent or permission and over his continued protest and objection and insistence of its removal, and the finding is supported that appellee was not guilty of negligence proximately causing the injury, and the amount of the judgment is sustained by the evidence.

E. L. Agnew and Thurmond & Steger, for appellants. McGrady & McMahon, for appellee.

LEVY, J. (after stating the facts as above).

Appellants by several assignments, 1, 2, 6, 11, 21, and 22, here grouped by us for ruling, complain of the rulings of the court in respect to the claim of appellee for damages for the lessened value of his leasehold and its use to him because of the destruction of the buildings thereon. The court submitted special issues to the jury, and their findings on all issues and items of damages were separate and distinct findings. The jury's findings on the lessened value and use of the leasehold were by the court, when he entered the judgment, excluded and not allowed as a recovery to appellee. This final action of the court was tantamount to a finding in favor of appellants on this particular item of damage claimed by appellee, and operated, we think, to cure all errors, if errors, in respect to the questions presented on this appeal, and no injury, by the rulings, could be held in the case to result to appellants. The finding being separate and itself definite, and a recovery therefor being denied, it eliminated previous errors in respect thereto, as much so as remittitur would in cases of excessive damages. It is the established rule that a remittitur of special damages cures all errors in respect thereto occurring in the trial. The court in this case had the power to set aside and hold for naught this particular finding of damages by the jury, as being in his opinion not legally recoverable, and to accept and then base the judgment on the remaining findings of the jury. Findings on special issues are unlike a general verdict. We quote: "Findings of a jury upon special issues are not to be regarded in the light of a verdict, but should be treated as in chancery practice." Adkins v. Ware, 35 Tex. 577.

The appellants plead that Jim James owned, operated, and controlled the engine under an independent contract with them, and that they had no control, and were not responsible for his acts or omissions. Appellants by their third, eighth, twelfth, and fifteenth assignments contend, in effect, that in the case James, as a matter of law, was an independent contractor, and not a servant of appellants. By the tenth assignment it is claimed the issue submitted to the jury in this respect was as worded erroneous. The court submitted to the jury the finding as to whether James was an independent contractor with appellants, and they found in...