Wilson v. Benoit

• Decision Date: 28 June 1950
• Docket Number: No. 9894,9894
• Citation: 231 S.W.2d 916
• Parties: WILSON et al. v. BENOIT.
• Court: Texas Court of Appeals

Page 916

231 S.W.2d 916

WILSON et al. v. BENOIT.

No. 9894.

Court of Civil Appeals of Texas, Austin.

June 28, 1950.

Rehearing Denied July 26, 1950.

W. M. Zachry, Douglas Boyd, Waco, Jones & Herring, Herman Jones, all of Austin, for appellants.

Coleman Gay, of Austin, for appellee.

GRAY, Justice.

Appellants, Garnitt Wilson Kerley, Carol Sue Wilson, Phyliss Jean Wilson and Robert L. Wilson, Sr., in the order named, are: the surviving wife, minor daughters, and father of Robert L. Wilson, deceased. Garnitt Wilson Kerley is joined in this suit by her present husband, Edwin R. Kerley. Appellee, Phillip Benoit, was the owner and operator of Benoit Motel, a tourist court located in the City of Austin.

This suit was brought by appellants against appellee to recover damages for the death of Robert L. Wilson, alleged to have been caused by the explosion of natural gas accumulated in the tourist cabin occupied by him.

Appellants alleged that appellee was negligent: (1) in maintaining a gas heater in the cabin occupied by Wilson which was connected by a flexible rubber and fabric hose to the gas pipe the use of which hose was prohibited by an ordinance of the City of Austin; (2) in nailing a cover over two vents in the cabin, thereby eliminating their usefulness as ventilators, the purpose for which they were originally designed; and (3) in installing and maintaining electric wiring in the cabin, in that no character of covering was placed about the light switches which would enclose the inner part of said switches so as to prevent natural gas from coming in contact with the sparks resulting from the operation of such switches.

Appellee answered by general denial, a plea of contributory negligence on the part of Wilson by reason of 'some act or conduct' on his part, and, in the alternative, that the explosion and injuries received by Wilson were the result of an unavoidable accident.

As developed at the trial, the facts show: That sometime late in the afternoon of March 22, 1947, Wilson registered as a guest with appellee and was assigned to cabin No. 22. After making a telephone call, he went to the cabin where he remained a short time and left. He returned to the cabin at about 9 o'clock p. m., parked his car in the garage adjoining the cabin, but was unable to open the door leading from the garage into the cabin and got his key hung in the lock. Wilson reported this fact to the office, appellee sent an assistant to open the door, the assistant failed in his efforts and reported back to appellee. Appellee then opened the door with a pass key, went inside, turned the light on, examined the bathroom, saw the same was in order and left, leaving Wilson in the cabin.

In answer to a question as to whether or not he made an inspection of the heater and rubber hose at the time he showed Wilson into the cabin, appellee said: 'I didn't make any inspection right at the time I showed him the cabin, no, but I have cleaned the cabin myself, I would say around 11 o'clock or 12 o'clock, or something like that, and then inspected the stove to see whether it was on or off, because we do have customers that leave the stove on when they check out in the morning, I believe.'

He further said he did not light the heater because it was too warm 'to have a stove in the house lit.'

It was shown by an employee of the United States Weather Bureau that the temperature from 8 p. m. on March 22nd to 8 a. m. on March 23rd, ranged from a high of 67 to a low of 64 degrees. Appellee said he did not have a fire in his office on the night of March 22nd.

When Wilson returned to the cabin at about 9 o'clock p. m. on March 22nd, he was in an intoxicated condition, and, at that time, had a pint whisky bottle in his pocket.

Appellee maintained a natural gas heater in cabin 22 for the comfort of his guests. Gas to this heater was supplied by means of a pipe leading into the cabin and there was a jet or cut-off on the pipe where it ended near the wall of the cabin; the heater was connected to this jet or cut-off by a flexible rubber and fabric hose about 14 inches long with rubber tips on each end, one of which was pushed on the wall cut-off and the other on the cut-off at the heater. Apparently the gas could be cut off by using either the cut-off on the heater or the cut-off at the wall.

With this statement of the evidence, events and happenings up to 9 o'clock p. m. on March 22nd, the evidence closes and nothing is known of the acts and conduct of Wilson and the happenings and occurrences within cabin 22 until the morning of March 23rd, at about 7 o'clock a. m., when an explosion occurred which wrecked the cabin, set its contents on fire and inflicted injuries on Wilson from which he died at 3 o'clock p. m. on that day.

Appellee said that at about 7 o'clock a. m. on March 23rd he was awakened by an explosion and, upon looking out, he saw fire coming from cabin 22. He first called the fire department, asked them to call an ambulance, then slipped on some clothes and ran to the cabin. There he found Wilson standing in the bathroom, the cabin was badly wrecked and there was fire. At the time appellee reached the cabin a Mr. Smith and a Mr. Dupree were inside and others were on the outside, the police and firemen were also there. Further identification of these parties is not clear. Smith and Dupree did not testify. Wilson was screaming and was first taken to the court's office and then to the hospital. Approximately 95 per cent of his body was burned, about 70 per cent was third degree burns and about 25 per cent second degree. Wilson remained conscious until about thirty minutes or an hour before he died at 3 o'clock p. m., March 23rd.

Before he was taken to the hospital Wilson said he bought a paper and was going to read and when he turned on the light the explosion occurred, and while in the emergency room at the hospital he said as he flipped the light switch there was an explosion.

It is not shown who was the first person to enter cabin 22 after the explosion, but appellee said when he got there the hose was disconnected from the wall cut-off, that the jet was turned off, and that the hose was connected to the heater. There was testimony that a test was made of the hose connected to the heater and that it showed no leaks.

The cause was submitted to a jury on seventeen special issues, and the jury found:

By issue one: That the use of the flexible rubber and fabric hose was a proximate cause of the explosion and the resulting injuries and death of Wilson.

By issue two: That there was not a cover nailed over the vent in the ceiling of cabin 22.

Issue three: That the nailing of covers over the two vents in cabin 22 was not negligence.

Issue four: That such negligence, if any, was not the proximate cause of the explosion, injuries and death of Wilson.

Issue five: That the explosion, injuries and death of Wilson was not the result of an unavoidable accident.

Issue six fixed Garnitt Wilson Kerley's damage at $3,000.

Issues seven and eight fixed the amount of the damages suffered by Carol Sue Wilson and Phyliss Jean Wilson at $5,000 each.

Issue nine fixed Robert L. Wilson, Sr.'s damage at $600.

Issue ten found the amount of hospital, doctor, nurse and funeral expenses to be $600.

Issue eleven found Wilson did not disconnect the rubber hose from the gas jet at the wall.

Issues twelve, thirteen and fourteen were conditionally submitted on an affirmative answer to eleven, and were not...