Texas Loan Agency v. Fleming

• Decision Date: 23 February 1899
• Citation: 49 S.W. 1039
• Parties: TEXAS LOAN AGENCY v. FLEMING et al.
• Court: Texas Supreme Court

49 S.W. 1039

TEXAS LOAN AGENCY v. FLEMING et al.

Supreme Court of Texas.

February 23, 1899.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Fannie R. Fleming and others against the Texas Loan Agency. A judgment for plaintiffs was affirmed by the court of civil appeals (46 S. W. 63), and defendant brings error. Reversed.

Frost, Neblett & Blanding, for plaintiff in error. Chas. S. Todd, R. W. Rogers, and Hiram Glass, for defendants in error.

BROWN, J.

Fannie R. Fleming, the widow of Edgar Fleming, brought this suit for herself and her minor children, in which she was joined by the parents of her deceased husband. Plaintiffs sought to recover from the Texas Loan Agency damages for the death of Edgar Fleming, charged to have occurred through the negligence of the loan agency at an hotel in the city of Texarkana, Tex. It was averred in the petition that the deceased lost his life through the defective and dangerous condition of a door in the hotel building, the property of defendant, at which he stopped as a guest. The plaintiffs recovered a judgment for $20,000, which was affirmed by the court of civil appeals, upon the following conclusions of fact: "It was established by the facts that appellant, in 1891, held a mortgage on a certain hotel building in Texarkana, Tex., owned by one Benefield; and, to settle the matter, the hotel was partitioned, Benefield getting a portion 32 feet wide and 130 feet long, and appellant the balance of the building. The hall running east and west ran across both portions of the house, and was used jointly by the different owners. The hall running north and south was in the part of the building belonging to Benefield. The water-closets in the building were all on the property belonging to appellant. Guests of the hotel, on the second floor, in order to reach the water-closets, had to pass along the hall running north and south, until a short hall, also on Benefield's property, running east and west, was reached, at the end of which the room in which the water-closets were situated was reached. This room belonged to appellant, and access to it could only be obtained in the manner described. In addition to the door leading from the hall into the room, there was a door on the south of the room, which opened out into space. The water-closets were used indiscriminately by guests, whether in Benefield's or appellant's part of the house. The hotel was, on May 1, 1891, leased by Benefield and appellant to D. McGraw, for a term of five years. At the time of the lease, the door leading out into space was not locked, nor in any manner protected or guarded, but was often left open. The condition of the door was known to appellant, and it remained in that condition until the accident occurred, on the morning of March 3, 1892. On February 1, 1892, McGraw abandoned the hotel, and appellant proceeded to collect rents from tenants of McGraw on the first floor; and Benefield opened an hotel in his part of the building, and, with the knowledge and consent of appellant, the guests of Benefield used the water-closets above described. On the night of March 2, 1892, Edgar Fleming, a guest of Benefield, went to the water-closets, and, the door being open that opened out into space, stepped out, fell to the pavement 15 feet below, and received injuries from which he died on March 4, 1892. We find that appellant at this time had resumed control of the hotel, and that the door was open on the night of the accident. Edgar Fleming was not guilty of contributory negligence in going through the door. Edgar Fleming lost his life through the negligence of appellant. The accompanying diagram will render assistance in arriving at an understanding of the condition of the premises hereinbefore mentioned." 46 S. W. 64. The plaintiff in error assigns that the following findings of fact are without evidence to support them: "(1) With the knowledge and consent of appellant, the guests of Benefield used the water-closets above described. (2) We find that appellant at this time had resumed control of the hotel, and that the door was open on the night of the accident."

When a court of civil appeals has found, from the evidence, conclusions of fact, they are binding and conclusive upon this court if there be evidence to sustain them. It is a question of law, however, for this court to determine, if there be any evidence in the record to support the findings of that court. Choate v. Railway Co., 91 Tex. 409, 44 S. W. 69; Hudson v. Railroad Co., 145 N. Y. 412, 40 N. E. 8; Hannigan v. Railway Co. (N. Y. App.) 51 N. E. 992. It requires no less testimony to support a finding of fact made by a court of civil appeals than if such finding were made by a jury in the trial of the cause. "It is the duty of the district court to instruct a verdict, although there may be slight testimony in support of an issue, if the probative force of such testimony be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established. Such testimony, in legal contemplation, falls short of being `any evidence,' within the meaning of the law." Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. The fact that there may be evidence which was admissible does not preclude the trial court from determining the question of its legal sufficiency. The same test is applicable to a finding of fact by the court of civil appeals when challenged in this court upon the ground that it is without evidence to support it. If the testimony be such that a district judge should instruct a verdict, then a finding by the court of civil appeals upon such evidence would be equally untenable as a verdict. The jurisdiction of the court of appeals of the state of New York to review the action of the general term on the facts is quite similar to that of this court in regard to the findings of fact by the courts of civil appeals. In Hudson v. Railroad Co., cited above, the New York court said: "All questions as to the weight of evidence are final in the general term, and this court has no power to review the determination of that court with reference thereto. But where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts, about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires."

A careful examination of the statement of facts fails to show any evidence whatever to sustain the following portion of the finding of the court: "And, with the knowledge and consent of appellant, the guests of Benefield used the water-closets above described." Curtis, the only representative of the loan agency who appears to have been at Texarkana about that time, testified positively that he did not authorize Benefield or any one to use any part of the building which had been leased to McGraw, and that the loan company and its officers never knew until after Fleming was injured that the rooms or closets belonging to it in said building were being used by Benefield or any other person. Benefield testified that Curtis refused to rent him that part of the building, and Brown, the clerk of Benefield, testified that he had no authority from the loan company to use the rooms or any portion of the building that belonged to it. There was no testimony to the contrary of these statements that we can find in the statement of facts. We therefore sustain the objection of the plaintiff in error to that portion of the finding of the court of civil appeals.

The second conclusion above copied rests upon two circumstances alone: (1) The Texas Loan Agency received from the tenants of McGraw, who occupied the first floor of the building, rent due under their contract with McGraw, and credited the amount upon McGraw's account with it for rent; (2) that the accounts of Estes and Watlington, agents of the Texas Loan Agency, show that after the injury had occurred to the deceased, Mr. Fleming, and before the...