Gerneth v. Galbraith-Foxworth Lumber Co. , 1928 Tex. App. LEXIS 458 ( 1928 )

On the Merits. This suit was instituted on the 9th day of April, 1926, by Otto Gerneth, as next friend for D.C. Gerneth, a minor, against the Galbraith-Foxworth Lumber Company, to recover damages. It was alleged, in substance, that the defendant maintained a lumber yard in the residential section of the city of Gainesville near the residence of Otto Gerneth, and maintained therein a dangerous mechanism in the way of an elevator; that the yard was open and inviting and attractive for children to enter and play; and that the minor plaintiff, about 4 years old, with a companion slightly older, entered said place, was attracted to and got on said elevator, and was injured. It was alleged that the defendant was negligent in so keeping and maintaining said elevator, and that said negligence was the proximate cause of the injuries of the minor plaintiff. Damages were prayed for in the sum of $15,000.

The defendant answered by a general demurrer, a general denial, and a special answer that the minor plaintiff was a trespasser at the time of his injury, to which the plaintiff replied that, because of his tender years, the minor could not be a trespasser.

The case was tried before the court and a jury, and at the close of all the evidence the defendant presented a motion to instruct the jury to return a verdict for it. The court granted the motion, so charged the jury, and a judgment was accordingly entered that the plaintiffs take nothing by this suit and that the defendant go hence and recover his costs.

In due time, plaintiff filed a motion for a new trial, which was overruled, and the plaintiff has duly prosecuted this appeal. Among other motions not necessary to mention, but which have been acted upon and determined by us, was one by appellee to strike out the statement of facts. In substance, this motion was based upon the contention that the statement of facts had been filed in the district court after the time for which such filing was limited, without the consent of the trial judge. The statement is in due form, agreed to by both parties, and approved by the trial judge. But the record discloses that in the trial court there had been a motion to permit its filing, but that the motion, after a hearing of the evidence submitted, was overruled by the trial judge, and that the evidence heard by him upon the hearing of the motion has not been brought forward in the record before us. As may be seen from the opinion written by Mr. Justice BUCK, we, on July 9, 1927, sustained the motion to strike out the statement of facts, on the theory, in part at least, that in the absence of the evidence heard by the trial judge, we were unable to say that he had abused his discretion in refusing to permit appellants to file the statement of facts in the trial court as then prayed for. Later, appellant filed a number of affidavits tending to explain the failure on the part of appellant's counsel to secure the filing of the statement of facts in due time, all of which appellee sought, by motion, to have stricken from the record, but which motion we overruled. After various other motions ruled upon by this court, not necessary to mention, appellants presented a motion for rehearing upon our order striking out the statement of facts.

Some differences of opinion having arisen in the minds of the members of this court upon the questions presented, we, on October 1, 1927, certified the questions to the Supreme Court for decision.

The Supreme Court, as may be seen from its opinion, handed down on the 30th day of November, 1927 (300 S.W. 17), ruled, among other things, that:

"If the Court of Civil Appeals struck the statement of facts from the files upon the ground that that court did not have any jurisdiction to pass upon the question, then the Court of Civil Appeals erred in so doing. Upon the other hand, if the Court of Civil Appeals concluded as a fact that the appellant tendering the statement of facts to the clerk for filing had not shown to the satisfaction of the Court of Civil Appeals due diligence to have the statement of facts filed within the time prescribed by law for filing the same, and that his failure to file the same within said time was due to the fault of himself or his attorney and was not the result of causes beyond his control, then the Court of Civil Appeals did not err in striking the statement of facts."

The Supreme Court having held, as indicated, that this court alone was clothed with jurisdiction to determine, as an issue of fact, whether the evidence presented by appellant's affidavits showed a sufficient excuse for appellant's failure to have the statement of facts filed in the district court within the time prescribed by law, we carefully considered such affidavits and facts therein presented, and concluded, as will fully appear by an opinion written by Associate Justice BUCK, on the 3d day of March, 1928, that sufficient diligence was not shown for such failure to file, and we consequently overruled appellant's motion for a rehearing of our former order to strike out the statement of facts, so that we now have the case before us for determination on the merits in the absence of a statement of facts, the case having been set down for a hearing on the 31st day of March, 1928.

The record discloses that in the trial below, upon the conclusion of the evidence, the court gave to the jury specially requested instructions to find for the defendant. Alleged error in so doing constitutes the ground upon which appellants base their contention that the judgment below should be reversed. Appellant's assignments of error upon which the contention is predicated are as follows:

"(1) The verdict and judgment is contrary to the law and evidence.

"(2) Because the court erred in granting the motion of the defendant for an instructed verdict in its favor, the same being presented and granted by the court after all the evidence had been introduced both by the plaintiff and the defendant and both sides had rested, because there was sufficient evidence before the jury to warrant a recovery in favor of the plaintiff herein.

"(3) Because the court erred in peremptorily instructing the jury, on the motion of the defendant at the close of all the evidence, to return a verdict in its favor."

It seems evident that appellee's objections to the consideration of the first and third assignments are well taken, see rule No. 26 for the government of this court; Thompson v. Smith (Tex.Com.App.) 248 S.W. 1070; Earle v. Blankenbecker (Tex.Civ.App.) 297 S.W. 231, and appellee's objection to the second assignment seems supported by the cases of Liner v. J. B. Watkins Land Mortgage Co., 29 Tex. Civ. App. 187, 68 S.W. 311, and Holt v. Uvalde Co. (Tex.Civ.App.) 258 S.W. 285. In the case first cited it was held that an assignment of error, stating that "the court erred in directing the jury peremptorily to find for plaintiff, because the evidence supports the several defenses pleaded by defendant," was too general to require consideration. The case in Holt v. Uvalde Co. (Tex.Civ.App.) 258 S.W. 285, is one holding, among other things, that an assignment which reads, "The matters pleaded in defense were sufficient to defeat plaintiff's cause of action, and the evidence offered in support of and tending to support same, being also sufficient, the court should not have peremptorily instructed the jury," was too general to require considation on appeal

We therefore feel that we must hold that appellant's assignments of error are too general to require consideration, but if by any process of reasoning it can be said that, under the rule of the decisions, we are in error in concluding that the assignments do not require consideration, it is evident from the assignments that, in the absence of a statement of facts, we cannot say that the evidence did not justify the court's action in giving the peremptory instruction to find for appellee. In support of the proposition we think it unnecessary to cite authority inasmuch as it has been so frequently determined that in the absence of any statement of facts, bills of exception, or findings of fact, and none of these things appear in the record, it must be presumed that the evidence fully sustained the judgment of the court.

No fundamental error appearing, we conclude that the judgment must be affirmed.