Brown & Root, Inc. v. Service Painting Co. of Beaumont

• Decision Date: 20 February 1969
• Docket Number: No. 7032,7032
• Citation: 437 S.W.2d 630
• Parties: BROWN & ROOT, INC., et al., Appellants, v. SERVICE PAINTING COMPANY OF BEAUMONT, Inc., Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 630

437 S.W.2d 630

BROWN & ROOT, INC., et al., Appellants, v. SERVICE PAINTING COMPANY OF BEAUMONT, Inc., Appellee.

No. 7032.

Court of Civil Appeals of Texas.

Beaumont.

Feb. 20, 1969.

Rehearing Denied March 6, 1969.

Vinson, Elkins, Weems & Searls, Houston, for appellants.

Seale & Stover, Jasper, Ross, McLemore, Collie & Richards, Beaumont, for appellee.

KEITH, Justice.

This appeal follows the entry of a judgment denying appellants indemnity under the provisions of a contract between appellants and appellee. Basically, this statement of the case, agreed to by appellee, is taken from appellants' brief:

Suit was brought in the District Court of Jasper County by Betty Jo Carpenter, widow of Chester M Carpenter, deceased, against Brown & Root, Inc. and Eastex Incorporated, seeking recovery of damages for personal injuries which caused her husband's death. A third-party action was filed by Brown & Root, Inc. and Eastex Incorporated against Service Painting Company of Beaumont, Inc. ¹ for indemnity pursuant to the provisions of a sub-contract between Brown & Root and Service Painting Company of Beaumont.

At the time of the occurrence in question, Brown & Root, as general contractor, was installing a conveyor system in the Eastex Incorporated plant at Evadale, Texas. Chester M. Carpenter was a painter employed by Service Painting Company of Beaumont, Inc. and was painting underneath a bumper when it descended, crushing him to death.

A settlement was made between Brown & Root, Inc., Eastex Incorporated, and Betty Jo Carpenter, individually and as guardian of her minor daughter. The subrogated workmen's compensation insurance company's claim was also settled. The trial court found that the settlement was made in good faith and was reasonable and prudent under the circumstances.

The third-party action of appellants, Brown & Root, Inc. and Eastex Incorporated, against appellee, Service Painting Company of Beaumont, Inc., was severed and was tried before the court without a jury.

The trial court found that Chester M. Carpenter, on August 29, 1966, at the time of the occurrence which caused his death, was working within the scope of his employment for Service Painting Company of Beaumont, Inc., that the work being done by employees of Service Painting Company of Beaumont, Inc. was work in the performance of an agreement of August 11, 1966, between Brown & Root, Inc. and Service Painting Company of Beaumont, Inc., and that said agreement provided for the work to be performed in accordance with a continuing sub-contract which had been made between said parties dated May 19, 1965. The trial court then quoted the provision of indemnity, which we reproduce hereinafter.

In addition, the trial court found that at the time he received the injuries which caused his death, Chester M. Carpenter was performing work as a painter in the area underneath the bumper which descended upon him, causing his injuries and death. However, the trial court further held that the death of Chester M. Carpenter was caused solely by negligence of pipe fitter employees of Brown & Root, Inc., which negligent acts and omissions were unrelated to the performance of the painting sub-contract work, and held that appellants, Brown & Root, Inc. and Eastex Incorporated, were not entitled to recover from appellee, Service Painting Company of Beaumont, Inc., under the provisions of the written indemnity agreement.

In its general contract with Eastex, appellant was required to install an automatic handling system for rolls of paper, which included a bumper device which could be raised to control the rolls of paper and could be lowered or retracted below the floor level. The painting sub-contract called for painting work, including the area under the bumper. On the day in question, Carpenter and another employee of appellee were engaged in painting underneath the bumper in a pit below the floor level.

There being a leak in the air line controlling the bumper, it became necessary for pipe fitters of appellant to bleed the air from the line before cutting it. One of appellant's employees did this, and the bumper descended, crushing Carpenter at a time when he was actually engaged in his painting activities. The raising and lowering of the bumper had absolutely nothing to do with the painting activities.

The sub-contract contained this provision:

'Subcontractor (Service Painting Company of Beaumont, Inc.) agrees to indemnify and to save General Contractor (Brown & Root) and Owner (Eastex) harmless from and against all claims, suits (including counsel fees and other expenses of suit), whether groundless or not, judgments and awards on account of any damage to property or injury (including death) to person (including any damage or injury to the property or person of any employee of Subcontractor, General Contractor, or Owner) which may be caused or alleged to have been caused in whole or in part by, or which may occur or be alleged to have occurred in connection with, the performance of the Sublet Work .'

The court found that the death of Carpenter was caused solely by the negligence of the pipe fitter employee of appellant; that such negligent act was 'wholly unrelated to the performance of the painting sub-contract work and had no connection therewith;' that the work of the pipe fitter employees of appellant was likewise wholly unrelated with the painting work and had no connection therewith; the work being done by the pipe fitter employees of appellant was under the exclusive jurisdiction of the appellant as general contractor. Appropriate conclusions of law followed these findings of fact.

Appellant contends that under the undisputed evidence the death of Carpenter occurred 'in connection with the performance of the painting sub-contract work' with an alternative point that there was insufficient evidence to support the finding that Carpenter's death was not caused by 'and did not occur in connection with' the performance of the painting sub-contract work. The finding is also challenged as being so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Taking the affirmative of the issue, and contrary to the findings of the trial court, appellant argues that the death of Carpenter was caused 'in whole or in part by or occurred in connection with the performance of his work' for appellee under the sub-contract.

The fifth and final point spells out in detail the contention of appellant, and we quote it:

'Under the provisions of the sub-contract, indemnitor (Service Painting Company of Beaumont, Inc.) is liable to the indemnities (Brown & Root, Inc. and Eastex Incorporated) for damages arising out of the sole negligence of indemnitees where such damages were caused in whole or in part by or occurred in connection with the performance of work under the sub-contract.'

The parties have grouped the points and the reply thereto and we shall consider them jointly.

Appellant's argument is deceptively simple and, at first blush, seems unanswerable. It proceeds along these lines: Carpenter was killed at a time when he was painting under the bumper which descended upon him. Not only was he acting in the scope of his employment, but also it was the very work which he was doing which placed him in the position of danger wherein he met his death. Thus, in painting the area beneath the bumper, Carpenter was clearly effectuating the object of the sub-contract. It then follows, according to appellant, that 'he...