Luther Transfer & Storage, Inc. v. Walton

296 S.W.2d 750, 156 Tex. 492, 60 A.L.R. 2d 1087, 1956 Tex. LEXIS 624

• Court: Texas Supreme Court
• Decided: November 28, 1956
• Docket: A-5749
• Status: Published

Opinions

Mr. Justice Smith,

dissenting.

I cannot agree that the relationship between plaintiffs and defendant was that of a warehouseman and depositor. It is my opinion that the record shows that such relationship was that of landlord and tenant. Newton Walton, one of the respondents, testified that plaintiffs had the exclusive possession of the locker and its contents during the time they had the space rented; that all the merchandise which was damaged was in the locker; that they paid a monthly rental for the locker and that the rent was the same regardless of whether plaintiffs had any property in the locker. There are no facts which bring this relationship under the provisions of Article 5568, Vernon’s Annotated Civil Statutes. That Article does not make the arrangement in the present case one of warehousing. It provides that one who is a public warehouseman is “Any person * * * who shall receive * * * personal property in store for hire * *

The petitioner did not receive the property, neither did it have any right of control over the property. See Bash v. Reading Cold Storage & Ice Co., 100 Pa. Superior Court 359; Gruber v. Pacific States Savings & Loan Co., 13 Cal. 2d 144, 88 Pac. 2d 137; People ex rel Glynn v. Mercantile Safe Deposit Co., 159 App. Div., N.Y. 98, 143 N.Y. Supl. 849. For a summary of the evidence see pages 9-11, Application for Writ of Error, and pages 207-208, Statement of Facts. Petitioner’s contention that the evidence is undisputed that the relationship was that of landlord and tenant should have been sustained and petitioner’s motion for instructed verdict should have been granted.

I do not agree with the conclusion reached by the majority on the question of whether or not a conflict exists merely because the court failed to submit an issue of sole proximate cause in connection with the issue of unprecedented rainfall. Under the express terms of Rule 279, Texas Rules of Civil Procedure, the authority for a presumed finding on any unsubmitted issue belonging to a given ground of recovery or defense depends upon there having been a submission of some other issue “necessarily referrable” to that same ground of recovery or defense. In this connection, it is my opinion that the issue of “sole proximate cause” is not an independent ground of defense, but is referrable to the ground of defense whiehjwas submitted, to-wit, that the rainfall on the night of May 6, 1949 was unprecedented. The issue of “sole proximate cause” was raised by general denial and the evidence. It was just as related to and necessarily referrable to the unprecedented rainfall issue as the issues inquiring as to the act, negligence and proximate cause as against the defendant. The ground of defense in this case consisted of more than one issue. One was submitted; the other was omitted. I think there was evidence to support a finding that the unprecedented rainfall was the sole proximate cause of the damage sustained by respondents; therefore, since no request was made that written findings be made in support of the judgment, then it should be held that the court made findings on the omitted issues in such manner as to support the judgment. The judgment was that plaintiffs take nothing as against the defendant-petitioner. Presumed findings in support of the judgment would certainly be the result had plaintiff not objected to the court’s charge for its failure to submit the issue of sole proximate cause. The rule says, however, “* * * that objection to such failure shall suffice in such respect if the isue is one relied upon by the opposing party * * If this *were a case where the burden of proof rested with the defendant to prove sole proximate cause, I would agree that the objection was sufficient and it should be held that the defensive issue of “sole proximate cause” was waived. However, I do not believe this rule should be applied in a situation such as we have here where, although the issue was a defensive one, the burden rested on plaintiff to secure a finding that the unprecedented rainfall was not the sole proximate cause of the resulting damages. The discharge of this burden was an essential part of their case. The defendant specially plead the unprecedented rainfall and the pleadings and evidence raised the issue of sole proximate cause. It was incumbent on the plaintiff to obtain findings by the jury negativing such sole proximate cause. Since the burden was on the plaintiff to obtain a jury finding on the sole proximate cause issue, the fact that he objected can avail him nothing. His duty was to prepare a substantially correct issue and request the court to submit it. See Hicks v. Brown, 136 Texas 399, 151 S.W. 2d 790; Horton & Horton v. House, Texas Com. App., 29 S.W. 2d 984. Under this theory we would have a jury finding that the rainfall was unprecedented, and a presumed finding that the unprecedented rainfall was the sole proximate cause of the resulting damages. Such findings are necessarily in conflict with the findings of negligence and proximate cause against the defendant.

Under the evidence in this case the issue was that the act of God was not the sole proximate cause of plaintiff’s damages. That in effect was an issue relied upon by the plaintiff, and not one “relied upon by the opposing party” within the language of Rule 279, supra.

The judgment of the trial court should be affirmed. In any event, it should be reversed and remanded for a new trial because of conflicting answers of the jury and presumed findings of the court.

Opinion delivered November 28, 1956.

2nd Rehearing overruled January 9, 1957.