*1 Philip al. et M. Wilson v. Garnitt Benoit May 9, 1951. Decided A-2878. No. 13, 1951.
Rehearing overruled June Series, 792.) S.W., (239 *2 Gay, Austin, petitioner. Coleman for holding Appeals The Court erred in there was of Civil support jury’s special no evidence to answer to issue that Wilson’s intoxicated condition under circumstances shown negligence. holding That court also erred in support jury’s was evidence to answer that the use of the rubber hose connection was a cause of the resulting injuries. Trammell, and of the Sullivan v. 130 S.W. 310; City Ry. 2d Chandler, Kansas Southern 2d Co. v. 192 S.W. 304; Houston, Ry. Boone, 188, E. T. & W. Co. v. 105 Texas 146 533; McCann, Corp. 582, Tel. S.W. Western v. 128 99 Texas 895; 2d Beatty, S.W. Waterman Lbr. Co. v. 110 218 Texas S.W. 363. Zaehry, Douglas Boyd, Waco,
W. M. Herman both of Herring, respondents. Jones and Austin, Jones & for findings jury’s support There was sufficient gas hose was illegal rubber petitioner of an that the use of Civil gas explosion, Court proximate cause of thе court and trial judgment of the properly reversed v. respondents. Franklin judgment in favor rendered Ry. Burlington-Rock-Island 578; Co., 286 Houston Elec. S.W. 723; Peoria Tenant Ellison, 167 S.W. 140 Texas Co. v. Ry. Co., L. Ed. 520. Sup. Ct. 321 U.S. opinion of the Court. Mr. Justice delivered Smith Wilson, by respondents, Gamitt instituted This action was L. Wilson, Phyllis and Robert Sue Jean Wilson Carol damages Benoit, Sr., against Philip for petitioner, alleged wrongful Wilson, Jr. of Robert L. death petitioner reversed judgment
A trial court favor of *3 by in favor of and rendered the Court of Civil respondents. 231 2d 916. S.W. Wilson, surviving L. wife of Robert Garnitt Wilson was surviving Jr.; Wilson, Phyllis Carol and Sue Jean were surviving Wilson, Sr., children,
minor and L. was the Robert parent. trial,
Prior date Mrs. married Edwin R. Wilson Kerley, 17, 1949, plaintiffs and First on October filed their Original Petition, Kerley joining Amended said Edwin R. party plaintiff. proceeded aas on date case to trial the same jury. before the court the aid of a Jr., Wilson, family city
Robert L. and in his resided engaged where he Waco automobile sales business. According evidence, it was not unusual for him to leave Waco on business. 22, 1947, registered afternoon,
On March in the late Wilson at signed city the Benoit tourist court of Austin and was as- Apparently duly upon 22. Cabin No. the man was sober " arrival; having however, departed car, his after in his and later, his return to the tourist court some three hours appeared But, observed that to be intoxicated. the witnesses admitted parked properly that he drove his car and garage adjacent to his cabin. experienced difficulty unlocking
The deceased some door; fact, key. petitioner off he broke then out went opened door. entered Wilson cabin on this occasion thereafter, P.M., there without and remained or soon
about 9:00 A.M., shows, until about incident, far as the record so 7:00 gas explosion 23, 1947, a violent time there was March at which thereof, severe sustained a result Mr. in Cabin No. As 3:00 P.M. of he died about shock and from which burns day. same alleged a natural maintained
Respondents Benoit was connected 22 and that stove heater in No. Cabin hose, which the use of pipe and fabric rubber flexible Ordinance, by City Rule which specifically prohibited reads as follows: cooking stoves, stoves, ranges, hot water connections to “Gas rigid con- appliances metal
heaters and other shall be made fittings arranged for hose connections or gas nections and rubber appliances not will such connections for similar heaters provided apply rule to scientific be allowed laboratory appliances this shall burners, cetera.” as Bunson et
such They allege negligence per further that such use was se and resulting proximate a juries in- direct and cause of the deceased, and death L. Jr. Robert special issues, This cause was submitted to the on cause, negligence, we herewith set out the issues on contributory negligence and the answers of the rendering judgment plaintiff controlled trial court *4 nothing against defendant, take as Benoit.
SPECIAL ISSUE NO. 1 you preponderance Do find from a of the evidence that use of a defendant flexible rubber fabric hose to connect space heater a Cabin No. on March proximate explosion resulting injuries cause of the deceased, Wilson, death of the Robert L. Jr.? question
Answer this ‘Yes’ or ‘No’. :
answer Yes.
“SPECIAL ISSUE NO. 11 you preponderance Do find from a of the evidence that Wilson, Robert L. Jr. disconnected the rubber hose from the gas jet at the wall? ‘Yes’ ‘No.’ question
Answer this : No.
answer
“special no. 15 issue a you preponderance Do find from evidence during Jr., Wilson, intoxicated condition Robert L. was in an 22, 1947, occupancy 22 on March and March his Cabin No. 23, 1947?
Answer ‘Yes’ or ‘No.’
answer: Yes no.
“SPECIAL issue you preponderance Do find the evidence that Wilson, during Jr., intoxicated condition Robert L. his oc- cupancy you found, negligence of Cabin No. if have so as that term herein has defined? been
Answer question this ‘Yes’ or ‘No’.
answer: Yes
“special issue no. 17 you preponderance Do find from of the evidence that such condition, you intoxicated if found, have so was a cause resulting injuries and of the to Robert L. Jr.?
Answer this ‘Yes’ or ‘No.’
answer: Yes”
At the evidence, defendant, Benoit, close of filed his verdict, alleging motion for an instructed there was no submitting Special to warrant issue involved Issue motion, No. 1. The trial court overruled this and later objections overruled all Special defense to the submission of Issue No. 1. plaintiffs’ objections trial court also overruled all of charge submitting Special the court’s Issues 16 Nos. *5 Therefore, firmly convinced, are we an examination record, findings jury Special
of this in that of answer to neg- Issues Nos. 16 and to the effect that the deceased was ligent by being negligence virtue and such intoxicated that proximate resulting explosion cause of death of court to prompted trial only reason which was the
Wilson grant judgment. motion defendant’s below, appealed from this ad- plaintiffs respondents, original nothing their entire judgment and directed verse take submitting Special in trial court error of the claimed brief excluding certain offered and in 16 and Nos. Issues testimony. Appeals, Benoit, appellee in
Petitioner the Court Civil cross-assignment that presented to the effect in his brief submitting Special jury, erred in Issue No. trial court argument support thereof was there was and his chief warranting issue. no evidence the submission such judgment Appeals Court of Civil reversed the judgment Wilsons, holding, trial court and rendered for the effect, Special Issues Nos. 16 and 17 should not have submitted, they submitted, been and since were the trial court complied plaintiffs’ disregarded should have with the motion and judgment plain- answers and rendered for the finding Special on the tiffs in answer Issue No. 1 that the use of the flexible rubber and fabric hose connect proximate explosion resulting heater awas cause of the death of L. Robert Jr. points present Petitioner’s fifth and sixth of error Appeals of Civil submitting with reference to the issues question deceased; points five, intoxication six holding seven attack the Special reference to Issue No. eighth point raises the if the trial court correctly reversed, Appeals the Court of Civil should have
remanded the rendering case in judgment lieu of as it did. Petitioner’s points fifth and sixth present of error claim that the Court of holding Civil (a) erred there was support jury’s Special answer to Issue No. 1 to the effect that the use of the rubber hose connection proximate was a cause of the resulting death of Wilson; (b) holding petitioner was not entitled to an ground instructed verdict on the that there was no evidence that the use of the rubber hose connection was a cause of
The Court of Appeals, Civil passing questions, these
279 designatеd assignment of error cross petitioner’s before had as follows: Point, reads Third Counter as 1 Special submitting Issue No. in “The error of Court a ver- jury to return failing to instruct appellee’s favor.” dict in appellee that by a statement point was followed The counter Special No. Issue of excepted submission
(Benoit) submission justifying the evidence no “for reason there is leak, any being silent as jury, the record of such issue to the the record question, hose or defect rubber break during being any hose rubber use of said as to further silent by L. period occupancy Robert of of Cabin No. the Jr., insufficient the evidence further reason that and for the * * *” (Tr., jury. justify issue to of submission such p.66). argues petitioner no evidence that that thére was a sufficient amount
hose leaked and there no gas through exрlosion and that flowed cause the gas any escaped no rubber hose. from the agree. With this contention As the of Civil we cannot Court Appeals points presence an out “the. in the cabin explode conclusively fact amount sufficient to shown explode light it did on.” when the switch was turned began petitioner using the hose in Novem- December, 1945, admittedly ber or in violation of the above quoted ordinance. He used rubber fabric hose with this tip express pro- rubber connections each end in face of on * * * vision ordinance that “all connections to stoves by rigid shall connection, be made metal and all rubber hose * * fittings connections are not allowed tip The stove and the hose with rubber connections were used in the winters 1945 and at the close winter began stove and hose was stored until cool weather again fall of 1946. In petitioner the fall of violated quoted installing above ordinance with rubber hose stove inspection connections and admitted he had made no the connections between the time of installation and the date fact, some five or six made months later. In inspection no to determine whether or the connections were loose, either before or after the explosion testify after the member Petitioner did hose; department rubber that “he police tested the
the fire or if and blowed in to see it would the valve the stove closed ” He ‘There is no in it.’ turned around and said leak leak and *7 was made to determine whether further testified that no test ever tight plug or the where it connected onto the wall not hose explosion. prior The rubber hose any produced plaintiffs had never at time court and the inspection. petitioner to the hose an The access to make stated stoves; however, away did that he stored it with the other he say placed he and room in front of the stove hose store all others. guests petitioner frequently
The testified that would leave on, the heaters and that he would have turn the to off stoves. inspect any He did not the the the stove in manner at time assigned thing only room was first to he Wilson and that the evening open did the at time Wilson returned later in the was to the door and look in the if bathroom to see towels were there. He said that he had cleaned the room 11:00 and between 12:00 morning o’clock 22nd, the of the and that time the stоve jet was off. He claimed that the at the wall was off at the time However, he entered room after he admits men, Dupree, that two Smith and were in the room Wilson (Benoit) when he arrived. One these men cut could have They off testify. showing the valve. did not No as to made one arrived in the room first. Benoit heard said he Dupree say the wall valve off when he arrived. The found that did not Wilson disconnect the hose. Lang, police Tom department detective, Mr. O. testified hospital he talked with Wilson at the and that told him he had been to the bathroom and come back and turned light on, flipped switch, and explo- as he there was an
sion. Lang was asked question: this further you “Do recall whether you not Mr. Wilson any when saw him made statement as whether morning?” Lang or not" he had had the on that gave following reply: “No, sir, say. got didn’t up He said he and went to the bathroom and bed, returned to any on, and didn’t have as I understood it at the time.” haveWe examined and, doing so, entire record have viewed the light evidence in the plain- most favorable to the evidence, and discarding here; adverse tiffs, respondents verdict giving favorable to to all evidence credit verdict its jury, conclusion have reached and we supports reasonable its and that reason based on inference and lieu hose in use of a rubber conclusion ex- proximate cause of the rigid was a metallic connection resulting Jr. plosion of Robert L. death finding body. court jury, court, not the is the fact The findings permitted its conclusions never to substitute judge facts jury. that of is the of the exclusive weight proved, given credibility be witnesses right testimony. connection, it had the sole their In this weigh Benoit, light testimony petitioner, testimony pages other the record. The record reflects evidence, many and that he testified about that times *8 jets wall, positively the at the stove state and but he did not jet that the off wall when he cleaned be the the room tween 11:00 and 12:00 asked o’clock on 22nd until he page about the matter at 213 of The of Statement Facts. jury quantity had evidence before it that a sufficient of had leaked explosion; into the room to cause that lighter cigar rise; than tendency air and a natural has that dressing ettes and the north wall burned; matches on the were not that table damaged pieces the most and that of window glass feet; and Venetian blinds were blown a distance 80 gas pipe that leading order-; perfect room was guests frequently that jets open, left the stoves on and the course; hinges; that bathroom door was blown from its that there was no occasion for Wilson to use stove because enough; it was not cool only get up that Wilson’s act was to light and turn on the switch. jury right had the any part sole all to believe or petitioner’s testimony. right say, It reasonably had the and so that case, from all the we, and facts circumstances in this jury, portion do not your testimony believe that wherein you say jet wall o’clock, “the was turned off at I 12:00 when up room,” cleaned right and had the to conclude from the facts and jet circumstances that at the wall ac- tually on at said time. argues Petitioner finding jury judg- and ment of through the Court of Civil reached has been speculаtion by basing and upon inference inference infer- ence. He further contends that the accident could rea- have as
282 adopt the cannot manner.
sonably happened in some other We record may because jury be set aside theory verdict support to inconsistent gives equal and evidence of contains jury aside a verdict should never set court inferences. This inferences different merely have drawn could because the facts all the jury has considered or this case conclusions. answers, has, selected its admitted before it conflicting conflicting inferences evidence Burlington-Rock v. Ry. Island Co. considered most reasonable. & Ellison, 353, 723; 2d Tennant v. Peoria 140 167 Texas S.W. 409, Ed. 29, L. Co., Sup. 88 Ry. 64 Ct. Pekin 321 U. S. Union 616; 2d Hen- 520; Lockley Page, 142 Texas 180 S.W. v. Younger App.,) ; Neal, (Tex. wood v. 198 2d 125 Civ. S.W. NRE); refused, Bros., Marino, (writ Inc. v. 198 2d S.W. Perry, affirmed 2d Hоuston & Fuel Co. v. Gas 55S.W. Ellis, 1052; v. 2d Texas Cities Gas Co. Texas S.W. 419, (writ 717; Turner, S.W. 2d Bohn Brothers v. 182 S.W. refused, merit.) want of Ellison, Burlington-Rock Ry.
In the case Island Co. supra, the stated: court argument, for the
“As we council understand their brief railroad ing no in this record show- contend that evidence tending negligence of the servants to show employees proximately railroad caused L. Ellison’s W. might hap- death because such his have under death pened ways in one of the several and the evidence does not show right happened way have said had a we *9 way. any to infer that it the over- did to exclusion other We required ex- plaintiffs rule this to contention. These were not might probability clude the accident have occurred way. impose upon some other of only required hold them To so would the burden establishing They beyond a were their case reasonable doubt. preponderance jury a
to convince the fair negligence the evidence the accident resulted from the defendant.” It is that the use rub admitted rubber with its tip negligence. by petitioner jury ber has was connections The negligence a proximate determined that such cause of jury is a What is cause for the proved. to determine all The the facts circumstances jury’s supported by answer is the evidence. opinion beginning
The evidence set out in of this is bearing of the the intoxication on the issue of evidence going absolutely any record void of deceased. negligence; fact, bhe any act of to that he committed show garage, to-wit, driving only into the performed, car acts his light next cabin, turning entering switch the on the ordinarily prudent morning were, opinion, an the acts of our single act or omission person. fail to find in this evidence We contributed, contributed, part have or could on his explosion resulting untimely intoxi- death. Evidence of in his negligence proxi- cation, standing alone, does not establish misconduct suf- evidence of other mate cause. must be There evidence, establish, by preponderance ficient failing person per- guilty performing some act or act, ordinarily prudent person form some which an would have performed. Ry. Reason, 61 Texas Houston & T. C. Co. v. Jur., p. par. Am. at There intoxicated was evidence that the deceased was bottle, P.M., 22, 1947, whiskey empty
9:00 March and that an pint containing whisky, were found another bottle some morning room the his next after the which оccurred upon 7:00 A.M. There further evidence that investi- about gation immediately explosion, after it was discovered connecting rubber and fabric hose used in the heater gas pipe at the wall disconnected from the wall. It is admitted that hose was connected both the heater and night wall at the time the deceased entered the cabin the before. evidence,
In view of this the trial court submitted to the jury Special Issue No. answered did not disconnect the heater. pre- was called from a to decide this issue
ponderance evidence, right and had the to consider along evidence of material evi- his intoxication with all other determining dence and circumstances in the issue as to whether gas pipe or not deceased disconnected thе hose from the wall. Evidence of at the evidentiary fact to be con- intoxication is an jury, facts, determining sidered or trier of the whether person guilty negligence, or not a contributory of some act of *10 but the fact of intoxication alone would the deceased not convict negligence. 482, Robinson, Paris & R. 104 G. N. Co. v. Texas 434; Louis, 140 Ry. Morgan, St. S.W. S. F. & T. v. Tex. Co. App., 281; Garner, 628, Civ. 220 S.W. Scott v. 137 Texas 156
284 513, 50; 2d
S.W. 141 A.L.R. San Antonio Public Service Co. v. Fraser, 91 S.W. eighth point judgment
Petitioner’s attacks the of the Court Appeals reversing rendering Civil case, says this that if reversing, failing the court was correct in it erred in remand. point. Special We sustain this We have concluded that 15, 17, above, Issues Nos. 16 and set out the issue submitted relative to upon the intoxication of the deceased an erroneous theory justice and that trial. The answers of demands another to said issues convince us that it the intoxicated believed condition of the deceased to and was a contributed cause of the
Respondent says that, Rules under Rule Vernon’s Texas Procedure, Apeáis Civil required the Court of Civil judgment render the that the court below should have rendered. rule, Under Apeáis this the Court of case Civil shall remand the for a only new necessary trial “it when some matter damage of fact be ascertained or the to be assessed or the matter to be decreed is uncertain.” “* * * provides
Rule Supreme 505 Court shall judgment reverse court, and remand the case the lower appear if it shall justice of the case demands another trial * *
It was McAlister, held in the case of London Terrace v. Texas quoted phrases S.W. 2d thе above from Rules 434 and 505 mean the same. We believe that is no substantial difference between them and that it was not intended adoption rules, govern- of the two one for the ment of Appeals, the Court of Civil and the other Su- preme Court, impose upon respective different these duties courts. The submission of upon wrong theory this case warrants saying
us in
fully developed
the facts were not
with that
degree
certainty
which would authorize the Court of Civil
Appeals to
judgment.
reverse and
judg
render
Rendition of
ment, where a
wrong
case has
theory,
been tried
should
only occur
complaining
where the record discloses that
party would not have been able to recover had the case been
right
tried on
theory.
Safety Casualty Co.,
Williams
Texas
285 error, eighth point discusses petitioner, under his ruling in on various matters claimed including of the trial court error requested submit certain refusal the court pass no counter do not on these matters because issues. We involving presented in his points questions of error these were therefore, and, Appeals, not con- of Civil brief the Court sidered that court. stated, judgments
For the are reversed reasons below and the trial trial. cause is remanded to the court another
Opinion May 9, delivered joined by Justices Garwood, Smedley, Mr. Justice Brew- Wilson, dissenting. ster my This dissent rests on is no evi- conviction that support finding dence to of causal connection between defendant’s violation of the ordinance and the killed judgment Mr. so that court the trial favor of accordingly the defendant should affirmed. be majority statement, prоximate ques- “What is a is cause tion jury for the from all and circum- determine the facts proved,” not, stances sure, is I’m mean intended to that courts proper cannot in a question case decide a matter of as law. We have held causation to as a be established matter of law. International-Great Northern R. Co. v. Haw- thorne, 131 Texas 116 2d 1056. S.W. We have also held as matter of law that Telephone it was not established. Western Corp. McCann, v. 895; Talley 128 Texas 99 2d Bass- S.W. Co., Jones App., ref.; Lumber Tex. Civ. er. S.W. Bourdon, Bowles v. 779, 13 148 Texas A.L.R. 2d 1. S.W. 2d question properly raised, here, When of “no evidence” is as it is as much jurisdiction duty— within our to scrutinize —and jury the reasonableness of inferences of causal as it is connection to examine negligence, contributory negligence inferences of any or other matter of fact. The domain of inference or deduc tion from circumstantial one in which courts are perhaps usually justified reviewing action, more than because reasoning the task there involved more often one undisputed determining than falsity facts truth or disputed Indeed, very facts. case before us the Court ignored Civil unsupported by has as evidence the jury finding that proxi intoxication of Mr. awas explosion, mate cause of majority evidently does quarrel holding. with that negligence majority
I to hold do not understand plaintiff’s per present, burden establish se cases like by showing merely proximate causation is satisfied general type injury produced event which was of the designed to forestall. ordinance statute *12 Beatty, Lbr. 218 S. W. Waterman Co. v. Texas holding recognizes clearly in that otherwise. The the rule to be employment plaintiff to work with case that evidence of minor’s dangerous statute), plus machinery (in a violation of working it, injury machinery with his such the course liability, was sufficient to does not affect make a fact issue of illegal case, Beatty clearly the case. for the instant hiring In the but dangerous machinery, he with minor to work accordingly not have would not have worked it and would with case, any- injured. present But it said been can be illegal that, equal probability, use of the like think but for the hose, explosion flexible the would not have occurred? though majority suggest, opinion not to to state seems reasonably many might words,
in so con- the have defective as sidered flexible hose to be some manner hose, though the evidence admits that Cоurt Civil way. imagine explanation for was the the other I can no other- produced statement that “The hose not court rubber plaintiffs any time to the never at had access hose court, inspection.” produced an make naturally so, un- It was not not plaintiffs plead since did hose not even defective, point, issue on nowhere com- asked for no and, plained of the issue so far as failure to submit such an shows, gave any record not at' no time indication of hav- ing having it, inspected themselves much less been able inspect it. The defendant testified without contradiction or equivocation readily kept spot that he the hose in a available following people inspect for the accident and “after by somebody the test was made fireman” camе out and testimony produced asked to see the it. hose or to test From the plaintiffs appears Austin De- themselves it that the Fire partment investigated report explosion, and made a on the special investigation private that a was also made investi- gator by Herbert, the name of K. R. who himself testified for plaintiffs presumably acting their If on behalf. part there was lack of information on the about hose plaintiffs hose, any surely evidence that it was a defective some appeared indication thereof would have in the record. But special investigator subject. even the said not on either a word overwhelming plain- record, inference from the is that good chose reason “access” to the hose and tiffs did have testified condition. The defеndant not to raise issue of its good the fire- positively and that that the was in condition air- the accident and found men tested it at the scene of this, tight. contrary In of evidence the absence resting have plaintiffs, did the defendant burden of on the prove by dis- open to conduct the hose in court —and a test of same thus tested interested witnesses that the hose escape an inference of defective hose in condition, order to —in alleged or otherwise when not even the latter was upon by plaintiffs Hardly. relied ? right Appeals, majority, like
Now the Court Civil legitimate inference, recognizing factual to the extent of as a open prior that the wall time valve was some morning character as on the The event and its March 23rd. *13 gas explosion the circum- a undeniаble facts as was also were gas except possibly entered the room stances could not have through a minimum This inference involves wall valve. speculation. conclusion, the ma- the further which Not so with jority reach, opened prior P.M. to 9 seems to that the valve was 22nd, tourist court March Mr. when Wilson returned there and That entered his cabin gas an intoxicated condition. certainly no was March 23rd is 7 A.M. on cabin at open of March evidence that the was at 9 P.M. valve or before 22nd, gas entering or that the room at that time. Neither defendant such evidence of the to be found the statement lying valve that he saw the hose from the wall disconnected shortly after found in the unsworn Possible it is Kerley by plaintiff statement Mrs. attributed Mr. Wilson rightly “in-laws”, ex- and one of her this statement was but by cluded thе trial court as hereinafter discussed. Otherwise there is not an iota of or circumstantial —that —direct gas open escaping prior wall valve was to 9 P.M. of or quite March 22nd. There is indeed uncontradicated and credible gas escaping evidence that was not at that hour or the earlier P.M., hour of into about when Mr. was first shown Wilson lawfully disregard his room. Even could the such evidence coming himself, certainly largely they as defendant not, disbelieving it, could opposite treat it as the what True, was. did find that Mr. did not himself dis- Wilson jet, connect the hose from It the wall as will be later discussed. also found that his intoxication caused the accident. And con- spicuously finding, express implied, there is no or wall jet gas escaping prior was turned on or that at or 22nd, in the
9 P.M. after Mr. remained March which roоm and in an intoxicated condition. alone the hose whereby
So the evidence the defendant’s use dan- explosion was a is to be connected with the is this: 23rd; gerous gas A.M. of March amount of in the room at 7 gas through wall, a pipe jet, came a with the valve entered; open at whatever time it was switch, explosion light Mr. Wilson turned on an electric followed; explosion, while and after several short after the people room, hose had entered the the defendant saw the during jet; temperature ten connected to the wall just explosion so hours 65°. before was about
Upon “therefore, say flexible this evidence to but for the hose, explosion” no seems there would have been no obviously flight speculation. all the evi- But this is not into dence to takеn as fact that Mr. Wilson be considered.'It must be during ques- only person the ten hours was the tion, in the room during last he that he was intoxicated that time and since that, entered 22nd while the room at about 9 P.M. of the good evidently equipped in Austin in funds health automobile, strangely not dis- an failed to return to his had would, just reported home, tant as he and had been Waco said he “missing police. persons” his wife to the bureau the Waco facts, speculation caused the With these added justifiable. is still less that, theory a more majority to be where seems *14 gives mysterious variety speculations or less event rise to a cause, as to the connect with the one of them will the event defendant, jury adopt that fault the left to the should be free one, though merely speculation. even of Civil it a The be Court defendant, evidently a as it took view less harsh the sought forthrightly justify the in detail the reasonableness inference, might jury In properly draw. it considered the doing, finding so held the it void the of causal connection between explosion intoxication, yet heavily and Mr. leaned oii Wilson’s finding jet. that he did not the hose the wall disconnect at theory, form, Its restated more this: The elaborate jet shortly was seen ex- disconnected from wall after the plosion. jury (upon evidence) found sufficient that Mr. Wil- son did may not it. inferred to blown disconnect So it have been be explosion! loose loose, inference it was From the blown may its
one in turn further infer that came loose (i.e. point “weakest” the connection at the wall rather than wall connection stove). inference that at the From this оne strong connec- say, than the “weakest”, less is to was the the “weak- inferred that stove, may further still tion at the be gas escape back- enough to allow est” connection was loose tip portion connection the rubber interior wards between the ex- a of evidence (as word is not to the character of which there jet, the wall cept tip”) exterior of that it was a “rubber tightly. designed tip to fit (presumably) over which gas enough for tip thus loose From inference escape. gas And escape, did so it is further inferred that thing happened with probably would not have since such rigid connection, finally use of inferred that metal it is hose caused the
r assuming reasoning errs at the This line outset finding jury the hose to mean that Mr. did not disconnect Wilson a “de that he did not. The issue was issue”, did fendant’s that Mr. and there was no Wilson negative. hose, disconnect so the answer had to be in the there, But neither evidence that did not dis a shred of be was, undoubtedly may quite connect it. Intoxicated as one logically speculate way as reasoning, one as the other. The rest of the unintelligent, certainly pure
while not is nevertheless speculation by inference, process piling inference on each step adding speculative its own element of until the final fact speculative jury may conclusion rests on a mass of fact. The pile inference inference. Federal Underwriters Ex change Hightower, App., Tex. Civ. er. ref. S. W. very ingenuity theory of the reflects its essential weak possible explanation event, hess. It is indeed one if one willing quite, to leave unsolved the riddle of when how on, wall valve came to be turned so the could enter range room. pick Whatever "of freedom to and choose the. between witness, this and that item of evidence from the same theré can be no doubt whatever Mr. Wilson entered the again cabin twice before the about 6 P.M. and —once Surely about 9 P.M. of March 22nd. could not dis believe the defendant’s statement that when Mr. he let P.M., light. in at 9 he turned on the Since it believed state his hour, ment that he found Mr. Wilson to intoxicated be at this altogether how could it disbelieve that he did the natural and possible thing lighting up a room that must have been darkness? open escaping, If the wall valve was then *15 why explosion was no at that time? And how could the jury, believing testimony the Mr. defendant’s about Wilson’s condition, at the same time disbeliеve his further statement gas? seems no It and smelled entered the cabin with Wilson at and certainty the was shut almost a on the record that valve be prior it the for some of March 22nd. Unless time 9 P.M. later, at all explosion of no evidence fact ten hours there is circumstances, contrary. even if we assume Under these altogether unproved disconnect fact that Mr. Wilson did not opened hose, likely quite is it not that he himself somehow as tampered the wall installations valve and with the otherwise leaking as that hose connection into the room from the when he entered continued to do so until recognized day? presumptions next normal conduct of obviously apply sojourning do not in the case men intoxi easy cated tourist cabins their own homes within reach of through families, anxiously while their seek wives them “missing persons” In bureau. such cases is the normal it almost thing something happen. abnormal Dry Co., App., Neither Bock v. Tex. Fellman Com. Goods 212 S. originated language quoted part by W. of the majority Burlington-Rock Ellison, Ry. Island v. Co. Texas is S. W. 2d nor the case itself latter closely point process here on the The inferential facts. those cases speculative was much involved than in less instant of language stating case. by way As to the a rule used law, if it equally means that are consistent where the facts with the proximate existence of cause and absence it, liberty exist, proximate is at to holding find cause evidently contrary refusing to our of error writ Talley Co., supra, (a Bass-Jones later decision Lumber than case). alleged negligence Talley Ellison In the case attaching was that of guy a smoke stack wire to an anchor or base which wood and fire the anchor inflammable. In a burned, fell, guy wire was loosened and stack the smoke causing the death opinion of a fireman. The of the Court of Appeals, Civil language: approved, which we contains this equally probable falling “So as of stack No. 1 severing and the consequent Talley by death of caused guy pro- wires the fire as that the occurrence guy being duced wire 2x12 the inflammable attached to timber at the west end or corner the fuel house. northwest In circumstances, specu- such jury may permitted to not be late as to which of the two causes was the cause Talley’s death.” 173 S. W. proxi- require
The rule thus stated does not seem to suggested beyond in the Bock mate cause as reasonable doubt
291 only requires prepond- there opinions. It that be a and Ellison theory of or of erance of in favor that version legal wrong injury suit. with the event which connects the McCann, Corp. supra. If Telephone See also v. Western theory probability equal entails balance of between the asserting liability not, liability party has one does simply prove failed to his case.
Viewing slightly way, the matter in a different is no proof causation, simply possi- where a the evidence discloses bility it, though appear possibili- even it does not that other essentially likely. Bourdon, supra, ties are more In v. Bowles principles necessarily which are limited mal- practice type suit, physician up a bound arm in child’s a a contracture, manner which cоuld cause and a contracture followed, though it was shown that the disease have could also binding. holding Gomefrom causes other than the In that there was no causation, evidence of this court said: (the “All evidence) respondent (de- it shows is that what fendant) probable only possible did was not a but a cause of contracture; only things it was one several could injuries complained have caused the of.” and further:
" plaintiff upon “And if the than would rest inferences rather upon testimony, proof direct must meets the same rule. ‘The beyond point conjecture. establish causal It connection possibility. must show more than a Verdicts must rest certainty proof. reasonable When discloses that given may a by result have occurred of more one reason than proximate cause, guess can no more than do speculate was, fact, cause, as to the efficient the sub- consistently mission of such choice to the con- has been Ramberg Morgan, demned other this court and courts.’ 779, 785, 209 Iowa 218 N. 498.” 219 W. 2d W. S. A.L.R. 2d 1. theory only possible theory No doubt if the were imagine explaining explosion,
one could as have would accepted, despite speculation to be would involves. It Bourdon, “probability”. in such event become a See Bowles v. supra. But, suggested, peculiar before as under the conditions prevailing including anything might happened, here most have even attempted suicide of Mr. Wilson. record it almost On the certainty he turned on the wall after P.M. on valve n something may 22nd. else
March He well have done besides. separately, theory аny nor Considered neither the hose other together, probability. can well be called a no one is Considered likely so much more to be true than the others as to be called a simply give probability. “prob- relative The record does not *17 satisfactory gas leakage. explanation able” or a situ- Such ation, resting plaintiff, with the burden of on does jury arbitrarily explanation not entitled the to select an imposes liability. alleged proffered by statement of Mr. Mrs. Wilson
Kerley and her relative-in-law and court excluded trial was relevant and plaintiffs much more favorable to the than the police. admitted ones which Mr. it made earlier But Wilson righly excluded. Doubtless no one of circum- the several working against stances admissibility under the res' the rule of gestae, lapse time, apparently, such as the of some four hours n declarant, continuous consciousness of the the fact that the state- reply ment questions, came in the fact that followed apparently earlier subject different on statements the same subjects, necessarily conversation on other would exclude application However, taking of the rule. to- these conditions gether, they clearly outweigh those of Mr. Wilson’s continuous suffering shock, determining and state of whether the state- requisite degree spontaneity ment had the in relation to the City Quinones, See of Houston v. 142 Texas 259; Schlakzug, S. 2dW. Pacific Mutual Life Ins. Co. v. 264, 183 Evidence, Texas 2d Texas S. W. 709. Law of McCormick Ray, seq. sec. 426 et Smedley, Justices Brewster and concur the con- expressed. clusions here Opinion May 9, delivered 1951.
Rehearing overruled June
Socony-Vacuum Company, Incorporated, Oil
John B. Aderhold. 14, 1951.
No. A-2790. Decided March Rehearing 20, 1951. overruled June (240 W., Series, 751.) S.