Blount-Decker Lumber Co. v. Martin

190 S.W. 232, 1916 Tex. App. LEXIS 1156

• Court: Court of Appeals of Texas
• Decided: November 16, 1916
• Docket: No. 1681.
• Status: Published

Opinion

WILLSON, C. J.

(after stating the facts as above). [1] The testimony showed that the house was destroyed by fire emitted from the engine because of the manner in which it was operated while equipped with an insufficient spark arrester. Whether appellant was-guilty of negligence in so operating the engine or not depended upon whether it owed to appellee a duty to use care in equipping and operating it or not. Appellant insists it did not appear that it owed appellee such duty, because the testimony showed, and the jury found, that appellee’s occupancy of the-house was as a subtenant of her brother John Bartholomew, and it did not appear, and the jury did not find, that she was such tenant with its consent. The argument is that it therefore appeared that appellee was a trespasser on its property to whom it owed no duty except not to willfully injure her.

We do not agree that the jury did not find that appellee was a subtenant with appel lant’s consent. Slie testified that appellant’s manager, Decker, agreed that she might occupy the house with Bartholomew, paying him rent therefor. Decker testified that he did not so agree; that nothing had ever been said to him by any one about appellee’s occupying the house either as a subtenant or otherwise. In the light of this testimony, which was all there was on that issue, we think the finding of the jury that appellant agreed that appellee might live in the house' must be regarded as determining the conflict in her favor and as a finding that appellant did consent that she might occupy the house as a subtenant. If she was such a tenant with appellant’s consent at the time the fire occurred, there can be no doubt appellant owed her a duty to use care in the equipment and operation of its engine.

[2,3] Appellant insists, however, that if the finding of the jury should be so construed, it was unauthorized, because, it asserts, it appeared from a great preponderance of the testimony that if appellee was ever such a subtenant she ceased to be such before the fire occurred. The contention is based on testimony of Decker alone, but not contradicted, that Bartholomew, about two weeks before the fire occurred, ceased to be an employ® of appellant; that it was “tacitly understood” that when a person occupying one of appellant’s houses quit working for it, he would at once vacate the house; and that he (Decker) at the time Bartholomew ceased to work for appellant notified him in writing to vacate the house within ten days from the date of such notice. The argument is that Bartholomew’s occupancy of the house after the expiration of the ten days was unlawful, and that appellee’s occupancy thereof thereafter-wards likewise was unlawful, because her right to do so as Bartholomew’s tenant ceased when he ceased to be appellant’s tenant.

But we think the finding of the jury is supportable on either one of two theories: (1) That, as they had a right to do (Coats v. Elliott, 23 Tex. 613; Dubinski Electric Works v. Lang Electric Co., 111 S. W. 169; Ins. Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203), the jury disregarded Decker’s testimony that he had notified Bartholomew to vacate the house; (2) that they thought such notice had been given, but also thought from Decker’s testimony that he had tacitly agreed with Bartholomew that he might occupy the house until the condition of his mother’s health permitted him to move her therefrom.

The jury might have found from the testimony that the fire occurred Tuesday of the week following the week during which Decker had the conversation with Bartholomew referred to in Decker’s testimony set out in the statement above. The jury might have believed that when Bartholomew explained to Decker that he had not moved out of the house because of the illness of his mother, but expected to move out “the next week,” Decker, by not then objecting to the delay, tacitly agreed that Bartholomew might continue to occupy the house until his mother’s health improved, or, anyhow, during the “next week.”

[4] If the jury might have so found from the testimony, then clearly, we think, it cannot be held that their finding that appellant agreed that appellee might live in the house should not be referred to the time when it was destroyed by fire. If appellee was in the house as a subtenant of her brother with appellant’s consent, as, we think, the jury must be held to have found she was, on testimony authorizing it, then she was not, of course, a trespasser as claimed by appellant, and appellant owed her the duty to use ordinary care in equipping and operating its engine.

In this view of the record, it is not necessary to inquire whether, had it appeared from the testimony and findings that appellee was a trespasser, appellant would have owed her any other duty than the duty not to willfully injure her, and, if it did not, whether the testimony was sufficient to support a finding that in operating its engine as it did appellant violated its duty not to “willfully” injure her.

[5] It appeared from the testimony that the fire emitted from the engine was not, in the first instance, communicated to any property belonging to appellee on the premises, but to the roof of the house. If, therefore, appellee’s occupancy of the house was as a subtenant with appellant’s consent, as, we have seen, was determined by the jury, we do not think the testimony made an issue as to contributory negligence or “assumed risk” on her part. The mere fact that she knew sparks escaping from the engine had started fires on other occasions did not make it her duty to move her property from the house in order to avoid the loss of same. Notwithstanding she might have known that appellant was guilty of negligence on those occasions, she was not bound to assume it would continue to operate the engine in the condition it was then in, or in the manner it then operated it, and so endanger her property. On the contrary, she had a right to assume it either would repair the defect in the engine or so operate it as to avoid injury to her property.

The judgment is affirmed.

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