Oriental, Etc., Co. v. Barclay , 93 Tex. 425 ( 1900 )

In this case, upon motion of the defendants in error, the Court of Civil Appeals struck out the statement of facts, declined to consider numerous assignments of error for the reason that they were without a record of the evidence adduced upon the trial, and affirmed the judgment. The action of the court in suppressing the statement of facts is assigned as error in this court. The question so presented has given us much trouble, but, after a very careful consideration, we have reached the conclusion that the assignment ought to be sustained.

The statement of facts is very voluminous and bears evidence upon its face that it was made up with but little regard for the rules. But the question is, does it manifest such a flagrant violation of the regulations provided for the guidance of counsel in such matters as to justify its suppression?

The defendants in error, Maggie Barclay, Maggie Sline, and Alma Semond, while in the service of the Oriental, a corporation keeping a hotel in the city of Dallas, were injured by the fall of an elevator. The hotel building was the property of the plaintiff in error, the Oriental Investment Company. Each of the defendants in error brought a suit against the Oriental for her injuries, and at a subsequent day, made the plaintiff in error a party defendant. The suits were afterwards dismissed as to the original defendant, and, by agreement of parties, were consolidated and tried as one. It was claimed in the amended petition that the accident was caused by a defect in the elevator and the incompetence of the employe who was operating it at the time, and that the managers of the hotel had been negligent in not discovering and repairing the defect, and in employing such a careless and incompetent servant. It was also claimed that the plaintiff in error was liable for the injury, because it had agreed to keep the property in repair, and also because, as alleged, the lessee corporation was organized and owned by the Oriental Investment Company and was a mere pretended corporation created by the latter in order to escape liabilities resulting from the operation of the hotel.

There was also a complication growing out of a dismissal of the cases as to the original defendant and the execution of an alleged release. Each of the plaintiffs claimed damages to the amount of more than $50,000 and each recovered a judgment for $6000. Although the three cases were tried together, and although, in the main, the evidence bearing upon the question of the defendant's liability was the same as to each of the three plaintiffs, the questions as to the extent of their injuries were as distinct as if they had been injured in different accidents. Upon the trial, numerous witnesses were examined and cross-examined at great length, numerous depositions were read, and numerous papers in the nature of documentary evidence were introduced. Most of the latter were offered as mere circumstances tending to show the true relations between the Oriental Investment Company and the Oriental, its alleged lessee, and, unlike contracts, conveyances, and the like, could not well be set out by giving their substance and effect. The court submitted to the jury thirty-three special issues; and, in the opinion of the trial judge, the findings of the jury, as first returned into court, were so inconsistent that he felt it his duty to send them back for further deliberation. The fact that a large amount is involved in a suit neither justifies nor excuses a violation of the rules which have been prescribed for making out a statement of facts. But the amount involved becomes a very important factor as affecting the length of the trial and the volume of the record. The earnest and stubborn contest engendered by the struggle for a great stake is likely to protract the examination of witnesses, to increase their number, and, where the testimony is conflicting and the evidence circumstantial, is calculated to draw into the case side issues upon mere evidential facts which prolong the trial and swell the record. In view of these facts and of the additional fact that the pleadings alone occupy nearly two hundred pages of the type-written record, it is not surprising upon first blush that the statement of facts should attain a length of about three hundred pages. Still, it is apparent from an inspection that it might and ought to have been made up in a more condensed form.

The existing rule 53 for the government of the Courts of Civil Appeals is the first rule of the court which expressly authorized the appellate court to disregard a statement of facts when not made out according to the requirements of law. But the power to do so under the previous rules has been frequently recognized by this court. Hawkins v. Lee, 22 Tex. 544; Dreiss v. Freidrich,57 Tex. 70; Wynne v. Logan, 3 Texas Law Rev., 387; Railway v. Culberson, 68 Tex. 664. This power was rarely, if ever, exercised by this court. In the cases just cited, the violation of the rules was gross, the statements in most of them embracing depositions of witnesses in which both questions and answers were copied at length; and yet the court declined to administer the harsh remedy of suppressing them. In amending rule 53 in 1895, it was sought to be more specific with reference to this matter and it was there provided that "if the violation of the rule be flagrant, the court may disregard the statement of facts altogether, unless," etc; and in a recent case in which a writ of error was refused by this court, we upheld the Court of Civil Appeals of the Fourth District in striking out the statement of facts because it was evidently a copy of the stenographer's notes, which, in setting out the testimony, gave both question and answer. Brown v. Viscaya, present term. It is evident that the departure from the rules is not so marked in the present case as in that, and, in our judgment, it ought not to be considered so flagrant a violation of the rules as to justify the striking out of the statement of facts.

Since we are of opinion that it was error to strike out the statement of facts and since the plaintiff in error was entitled to have the Court of Civil Appeals pass upon its assignments in the light of the evidence adduced upon the trial and to exercise that jurisdiction over the facts which that does but which this court does not possess, the judgment of affirmance in the appellate court will be reversed and the cause remanded to that court for further proceedings in accordance with this opinion. It is accordingly so ordered.

Reversed and remanded to Court of Civil Appeals.