Trice Contract Carpets & Furniture Co. v. Gilson

• Decision Date: 05 November 1959
• Docket Number: No. 13441,13441
• Citation: 329 S.W.2d 476
• Parties: TRICE CONTRACT CARPETS AND FURNITURE COMPANY, Inc., Appellant, v. Olion J. GILSON et al., Appellees.
• Court: Texas Court of Appeals

Page 476

329 S.W.2d 476

TRICE CONTRACT CARPETS AND FURNITURE COMPANY, Inc., Appellant, v. Olion J. GILSON et al., Appellees.

No. 13441.

Court of Civil Appeals of Texas, Houston.

Nov. 5, 1959.

Rehearing Denied Dec. 3, 1959.

Bryan & Patton, Joseph E. Hensley, Houston, Dalton & Moore, T. M. Dalton, Jr., Dallas, for appellant.

The Kempers, T. M. Kemper, Houston, for appellees.

WERLEIN, Justice.

This suit was brought by appellant against Olion J. Gilson, J. B. Butler and Gilson Floor Coverings, Inc., to recover from said parties jointly and severally damages resulting from loss by fire of carpets and floor coverings stored in a building rented by appellant from appellee, Olion J. Gilson. Appellant alleged that the fire was caused by the negligence of J. B. Butler, a servant and employee of the other two defendants, in setting fire to grass near the building in which appellant had stored its carpets and floor coverings.

Appellant has not appealed from the court's instructed verdict in favor of Gilson Floor Coverings, Inc., but has perfected its appeal from the court's judgment on jury verdict that it take nothing against appellees, Olion J. Gilson and J. B. Butler.

Appellant, in Points 1, 2, 7 and 8, asserts that the findings of the jury in response to Special Issues Nos. 2 and 12 were contrary to the undisputed evidence, and also so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

In answer to Special Issues Nos. 1 and 2 the jury found that J. B. Butler set fire to grass, weeds and trash on the premises and on the occasion in question, but that such act was not negligence.

To Special Issue No. 12 the jury found that the failure of appellees to warn appellant that a grass fire would be started on the premises in question was not negligence.

The testimony showed that appellee Gilson owned a tract of land in the City of Houston fronting east on Greely Street some 200 feet and running back in a westerly direction for depth approximately 125 feet. The small building rented to appellant was 20 feet in width and 50 feet in depth, fronting 20 feet on Greely Street but set back more than 60 feet from the street. Such building was located about 3 feet from the south boundary line of the property and the north boundary of a railroad right of way, and approximately 20 feet from the nearest rail of the railroad track. The back of this building was approximately 3 feet from the west boundary line of the property in question. About 3 feet north of this building was a large building approximately 100 feet in depth, fronting 50 feet on Greely Street. To the north of the large building was an unimproved space sometimes used for storage of building material. The small building had a concrete foundation and aluminum siding nailed on 2 X 2 inch studding. The large building, which was vacant, was constructed of galvanized iron.

Appellee Butler testified by deposition that Gilson told him to clean up the place and cut the grass on the premises in question. He started to work on Monday morning. He cut the grass with a sickle and a hoe and then raked it up. He raked it into two windrows north of the large building. He also piled some of the grass in a stack on the south boundary line of the property approximately 30 feet east of the southeast corner of the small building and approximately 90 feet south of the nearest windrow north of the large building. The windrows running in an easterly direction towards Greely Street were about 30 feet in length and the most southerly was 25 feet north of the large building. Butler testified that he set fire to the windrows north of the large building and sat there watching the fire continuously. He testified positively that he never set fire to any grass south of the large building; that after he had watched the fire for some 15 minutes, his attention was called by a man to the fire along the south side of the premises. A woman who lived in the back was turning a water hose on the little building; Butler took the hose and began pouring water on the small building. He saw the fire in some leaves scattered around. Finally something went 'boom' and that was all, the small building caught fire. The back end and inside of the large building burned some, but it was still standing after the fire.

The stack of grass on the south edge of the premises was located about 30 feet or more east of the small building and 20 feet or more south of the large building. Butler further testified that he did not set fire to said pile of grass; that afterwards such stack of grass caught fire but that he did not set it afire and that the only fire that he saw there was the fire that was in the windrows and that there wasn't any fire between the windrows and the building that caught on fire; that he didn't know what caught the building on fire; that he didn't see the fire spreading across the ground and that it couldn't get across there.

No witness testified as to how the small building caught on fire. Appellee Gilson had not been on the premises during the time the grass was being cut, nor did he arrive there until after the fire on Thursday. J. B. Selman testified that he walked out on the railroad tracks and watched the fire; that when he went out there the 'whole business was on fire, the yard and everything there'; that the wind was blowing pretty hard from the south or southeast; that he didn't know how the fire started; that the fire was all over when he got there, and he didn't know anything about it until he heard it popping.

Lewis Walter Ely, No. 3 District Fire Chief, testified that he didn't know at what spot the fire started originally; that when he arrived on the scene he circled the big building; there was grass burning to the north, also grass burning toward the little building and on the south side of the little building; that he asked Butler if he had been burning grass on the south side and Butler replied 'Yes' and told him the fire probably got away from him, that he had not been on that side of the building while he had been working on the north side. The Fire Chief's report was introduced in evidence and gave as the cause of the fire, 'J. B. Butler, negro, burning grass. Set Bldg. on fire.'

It is evident that the jury believed the testimony of Butler that he did not set fire to the stack of grass on the south or east of the small building. The Fire Chief's testimony merely went to Butler's credibility. No witness except Butler testified as to the location of the fire he started and no one knew where the fire originated that caught the small building on fire. It seems probable that the fire in the windrows did not set fire to the small building since the wind was from the southeast and not blowing in the direction of the small building but away from it.

The jury had the right to believe Butler when he testified that he did not set fire to the stack of grass southeast of the small building, and that the only fire he set was in the windrows north of the large building. The jury, having evidently concluded that Butler had set fire only in the windrows and that such fire was so located that it would not spread to the buildings with the wind blowing from the southeast, undoubtedly felt that Butler was neither negligent in setting such fire nor in failing to notify appellant that such fire would be started. We have examined the entire record and the testimony both favorable to the jury's findings and that militating against such findings, and have concluded that the jury's findings that appellees were not negligent in such particulars are not so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660; Banks v. Collins, Tex., 152 Tex. 265, 257 S.W.2d 97; Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, ref., n. r. e; Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234.

Appellant's Points 3, 4, 5 and 6 assert that there is no evidence supporting the jury's findings to Special Issues Nos. 4 and 8, and such findings are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

To Special Issue No. 4 the jury found that Butler did not fail to keep such watch over the fire as an ordinarily prudent person would do. In answer to Special Issue No. 8, the jury found that Butler did not fail to give warning of the spread of the fire he had set.

It is true that Butler did not deny the statement allegedly made by him to Fire Chief Ely that he had set fire to the grass at the south end of the premises. Butler, however, did not testify at the trial other than by deposition previously taken. It does not appear why he did not testify in person at the trial.

We do not agree with appellant that the alleged admission made by Butler to the Fire Chief was binding upon him. He testified under oath in his deposition just to the contrary of what the Chief stated he had said. The case of Texas & Pacific Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652, and the other cases cited by appellant, are not in point. In those cases the court held that the testimony of a party to a suit and admissions made by him therein must be construed as binding upon him and not merely as raising issues of fact. At no time in his testimony did Butler admit directly or indirectly that he set fire to any grass other than that in the windrows.

We think there is ample testimony supporting the jury's finding that Butler did not fail to keep such watch over the fire as an ordinarily prudent person would do. He testified that he sat and watched the fire continuously and that there wasn't any fire between the windrows and the building that caught on fire. We have concluded that the finding of the jury to Special Issue No. 4 is not so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly...