Weaver v. Benson

254 S.W.2d 95, 152 Tex. 50, 1953 Tex. LEXIS 434
CourtTexas Supreme Court
DecidedJanuary 14, 1953
DocketNo. A-3829
StatusPublished
Cited by17 cases

This text of 254 S.W.2d 95 (Weaver v. Benson) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Benson, 254 S.W.2d 95, 152 Tex. 50, 1953 Tex. LEXIS 434 (Tex. 1953).

Opinion

Mr. Justice Garwood

delivered the opinion of the Court.

The plaintiff Benson (respondent here) owns a fairly old concrete garage building in the City of Winters and sued the defendant Weaver (our petitioner) because of a serious crack in the south wall near the roof level, allegedly caused by a nearby blasting operation of the defendant-petitioner in the course of wrecking an exposed concrete foundation-floor of a former building. It was pleaded that the explosion hurled large rocks and debris against the wall so as to crack it or, alternatively, [52]*52caused earth tremors and vibrations accomplishing the same result. A judgment for the defendant-petitioner on a verdict was reversed by the Court of Civil Appeals, with an order for a new trial, on the ground of prejudicially erroneous exclusion of certain evidence of damage to another building nearby (250 S. W. 2d. 770) the defendant-petitioner complaining here that such error of the trial court, if error, was no ground for the reversal.

The jury findings (by the corresponding special issue numbers) were that: (1) no fragments were blown against the wall; (3) the defendant-petitioner did not use an excessive amount of explosive and (5) the crack existed prior to the explosion. The issue resulting in this finding No. 5 reflected a specially pleaded defense. There was no issue as to the existence of the crack at the time of the trial, since it admittedly did exist. Issues Nos. 2 and 4 on causal relationship between “the crack” and the tortious conduct of the defendant-petitioner, as enquired about in Issues Nos. 1 and 3, were not answered. Neither were Issues Nos. 6 and 7, which enquired as to the value of the building in suit before and after the blast.

The excluded evidence was tendered (through various witnesses) for the limited purpose of showing unusual force in the blast. The building to which this proof related was a welding or blacksmith shop built largely of tin or sheet iron and located somewhere around 60 or 75 feet southwardly from the blasting site, whereas the building of the plaintiff-respondent lay largely north and somewhat west from the site at a distance of about 100 to 120 feet. The welding shop had a wooden door which apparently faced toward the blasting site, and the tendered proof undoubtedly stated severe damage to this door, and some damage to other parts of the structure, from substantially sized rocks or concrete fragments thrown by the blast. Included also were a few general statements from which a jury might reasonably infer part of this damage to have been due to heavy vibration or concussion.

We granted the writ upon the single proposition (which appears to be defendant-petitioner’s principal point) that, assuming this evidence to be competent and relevant to the liability issues answered against the plaintiff-respondent as before stated and its exclusion to have thus made the trial court judgment erroneous, if those issues alone were involved, yet this erstwhile error was not error in view of Finding No. 5 abovementioned. [53]*53Upon further consideration following oral argument we conclude that the writ was improvidently issued.

In some cases of the general type of the present one, the error is rightly treated as immaterial, as, for example, where the excluded evidence bears only on the issue of liability, which is found against the plaintiff, and not on the question of damages, which the jury finds not to exist. In such a case, obviously the jury would not be justified in finding “no damage” just because it found “no liability,” nor could it rightly determine the existence or amount of damages on evidence relating solely to liability and therefore irrelevant to damages. And so we would assume that, even had the excluded evidence been admitted and even had it caused the answer of liability on the liability issue, the jury would still have answered the damages issue in the way it actually did — that no damages existed. Such is the essence of the decisions cited for the defendant-petitioner, such as Peacock v. Missouri-Kansas-Texas R. Co. of Texas, Tex. Civ. App., 148 S. W. 2d. 250; Shely v. Harney, Tex. Civ. App., 163 S. W. 2d. 839, (error refused Want of Merit) ; and Gross v. Dallas Ry. & Terminal Co., Tex. Civ. App., 131 S. W. 2d. 113, (error dism. cor. judgment).

The mere fact that the finding, which is said to render the exclusion of the evidence immaterial to the correctness of the judgment, is one pleaded as a special defense, as in the instant case, is not important. Contributory negligence, for example, is always so pleaded; but if the excluded evidence showed the lights of the defendant’s automobile to have been negligently dim (the jury having found otherwise), it might well also show the plaintiff pedestrian not to have been contributorily negligent in stepping into the path of the car, so that such a finding of contributory negligence would not render the exclusion of the evidence immaterial to the correctness of the defendant’s judgment. The true question is the relevance of the excluded evidence to the finding (be it under a specially pleaded defense or otherwise) which is claimed to render the exclusion unimportant. If it be relevant, then conceivably the jury, if allowed to hear it, might have made a contrary finding. The answer, of course, entails analysis of the issue and the evidence.

Appreciating this, the defendant-petitioner argues that Issue No. 5 was merely one on “damages”. But the kind of damage issue to which liability evidence is usually irrelevant is one in which the issue enquires whether the plaintiff suffered any loss, [54]*54not whether his undisputed loss is due to the act of the defendant. And here both the fact of the crack and the existence of at least some monetary loss from the crack are unquestioned, the only disputes being (a) whether or not the blast caused the crack by hurling rocks against the wall (b) whether or not the blast charge was excessive and thus caused the crack by concussion or vibrations (c) the precise money depreciation of the building as a result of the crack. So the purport of Issue No. 5 was rather one of determining liability than of determining damages. Its object evidently was the legitimate one of presenting the question of proximate cause in another way (in accordance with the special plea of the defendant-petitioner) so as possibly to produce a conflict in the verdict, should the other findings be favorable to the plaintiff-respondent. Undoubtedly if such favorable findings had been made and if Finding No. 5 had still been made as it was, there would have been a conflict between No. 5 and the findings of proximate cause.

Issue No. 5 being thus but another way of presenting the question of proximate cause, was the excluded evidence of the force of the blast relevant to it, so that if the jury had heard such evidence, a different Finding No. 5 might properly have resulted ? In other words, we may, in determining this question of relevance, look at the case as if the jury had answered Issue No. 1 that fragments had been blown against the wall or No. 3 that the blast charge was excessive, or both, but, with the evidence in question excluded, had also found that neither the rocks nor the excessiveness of the blast had caused the crack.

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Bluebook (online)
254 S.W.2d 95, 152 Tex. 50, 1953 Tex. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-benson-tex-1953.