131 S.W.2d 265 | Tex. App. | 1939
In this case judgment for damages was obtained against appellants, the Texas Hotel Company of Longview, and the National Hotel Company, for the death of F. D. Jones, alleged to have perished in the fire which destroyed Hotel Longview in Longview, Texas, on March 29, 1934. Plaintiffs were Mrs. Lasca Graham, formerly Mrs. F. D. Jones, joined pro forma by her present husband, Frank Graham, Edwin Jones, minor son, by his guardian, and the Maryland Casualty Company, which had been the compensation insurer of the employer of F. D. Jones, and which, pursuant thereto, had paid compensation to the widow and minor son.
Recovery was sought against the Texas Hotel Company of Longview upon the theory that this corporation operated and owned the hotel in question. Recovery was also sought against the National Hotel Company upon the theory that the latter owned the first-named company and had created it as a dummy corporation, and in fact was operating same through such an agency. The claim of liability was based upon the tort of negligence.
Defendant Texas Hotel Company answered with general demurrer, numerous special exceptions (leveled primarily at the allegations with reference to the character of materials out of which the hotel was constructed), a general denial, a special denial of any negligence, a plea of assumption of risk, and a plea that the sole proximate cause of the fire and of the death of F. D. Jones, if he died in the fire, was the suddenness and fierceness of the fire. National Hotel Company answered by filing general demurrer, special exceptions, and by adopting the answer of its co-defendant.
The verdict of the jury, upon special issues submitted, found facts as follows: That "on or about March 29, 1934, F. D. Jones died in the fire in question." That the Texas Hotel Company of Longview on said date was not in good faith running and operating said Hotel Longview as an independent corporation, and it was the agent of and under the management and control of the National Hotel Company in the operation of Hotel Longview. That "the employees of Hotel Longview failed to immediately call the fire department *266 upon discovering that said hotel was on fire," and such failure was negligence and a proximate cause of the death of F. D. Jones. That "the employees of Hotel Longview, upon the discovery of the fire, failed to immediately warn F. D. Jones," and such failure was negligence and a proximate cause of his death. The jury further found that the fire originated in the lobby-porter's closet under the stairway on the east side of the lobby and this closet was under the exclusive control of the agents, servants or employees of Hotel Longview. That "there was negligence on the part of the management in the operation of the closet" and this was a proximate cause of the death of F. D. Jones. That "the death of F. D. Jones on the occasion in question was not the result of an unavoidable accident." The jury answered that the fire was not sudden and fierce. No issues were submitted or requested on the question of assumed risk. No violation of any statutory fire regulation is involved. The doctrine of res ipsa loquitur was not raised.
The allegations in the pleadings and the theory upon which plaintiffs sought recovery against the National Hotel Company in the instant case are the same as detailed and discussed in National Hotel Company v. Motley, Tex. Civ. App.
Upon the issue of failure to immediately call the fire department the evidence here is practically the same as contained in the Motley case, supra. The material difference is that the deceased in the instant case occupied a room on the east side of the east wing on the third floor, and in the Motley case the plaintiffs occupied a room in the west wing. Then, too, the alleged delay in calling the fire department was strengthened by the plaintiff in the Motley case as to the exact time "by her watch" when she discovered the fire. In passing upon the evidence presented in the Motley case the Eastland Court said: "If, however, it should be granted that there was evidence to raise the issue of delay in calling the fire department and that such delay was negligence — the latter a subject to be noticed later — we feel even more certain that there was no evidence of any probative value to raise the issue that such delay was a proximate cause of plaintiff's injuries. Taking plaintiff's own estimate of the delay as ten minutes, and considering the character of rescue work that was done after the firemen did arrive, and that which would have been required to be done in any event, it can at most be said to be no more than a mere guess or surmise that had the fire department been called ten or more minutes earlier than it was called, the plaintiff would have been rescued without injury."
The Supreme Court dismissed application for writ of error, thus approving the judgment reached in that case.
In the instant case the jury found that the employees of the hotel failed to immediately warn Jones upon discovery of the fire, and this failure was negligence and a proximate cause of his death. In Texas Hotel Company of Longview et al. v. R. W. Cosby et al.,
The evidence and observations made in the Cosby case pertaining to the lobbyporter's closet are applicable to the record in the present case. The evidence is practically the same. We pretermit a discussion of other propositions urged.
Pursuant to the conclusions reached in the Motley case, supra, by the Eastland Court of Civil Appeals, the action of the Supreme Court on application for writ of error, and the conclusions expressed in the Cosby case, supra, the judgment as to the National Hotel Company is reversed and rendered in favor of that company; as to the Texas Hotel Company of Longview, the judgment is reversed and the cause remanded.