City of Beaumont v. Graham, B--758

• Citation: 441 S.W.2d 829
• Decision Date: 16 April 1969
• Docket Number: No. B--758,B--758
• Parties: CITY OF BEAUMONT, Petitioner, v. Mary Ruby GRAHAM et al., Respondents.
• Court: Supreme Court of Texas

Page 829

441 S.W.2d 829

CITY OF BEAUMONT, Petitioner, v. Mary Ruby GRAHAM et al., Respondents.

No. B--758.

Supreme Court of Texas.

April 16, 1969.

Rehearing Denied June 4, 1969.

Benckenstein & Norvell, John H. Benckenstein, Beaumont, for petitioner.

Ernest L. Sample, Orgain, Bell & Tucker, David Kreager and John G. Tucker, Beaumont, for respondent.

CALVERT, Chief Justice.

Respondents are statutory wrongful death beneficiaries of James Columbus Graham Jr. Graham was fatally injured when he fell while working in an elevated water storage tank belonging to the City of Beaumont. At the time of his fall Graham was an employee of Texas Tower and Construction Company which had a written contract with the City to make certain repairs to the water tank. Respondents sued the City and All Towers, Inc., for damages resulting from Graham's death. The City of Beaumont filed a third party action against Texas Tower and Construction Company, Graham's employer, seeking indemnity or, alternatively, contribution. Trial was to a jury on some one hundred and twenty-five fragmented special issues. The trial court rendered judgment awarding the plaintiffs a recovery from the City of damages as found by the jury, denying them a recovery from All Towers, Inc., and denying the City a recovery of either indemnity or contribution from Texas Tower and Construction Company. Only the City appealed, and, accordingly, All Towers, Inc. went out of the case. The court of civil appeals affirmed. 423 S.W.2d 105. We affirm.

Petitioner will be referred to in this court as City, and respondents will be referred to as the Grahams or plaintiffs and Texas Tower.

As incredible as it may seem, City presented one hundred and twenty-four points of error in its appellant's brief in the court of civil appeals, and one hundred and forty-two assignments of error in its motion for rehearing in that court. Its application to this court for writ of error contains thirty-two points of error. The thirty-second point complains of the failure of the court of civil appeals to respond to City's request for forty-four additional 'fact findings', said by City to be material to a disposition of the case and not to be found in the court's eleven page opinion. The complaint is keyed to Rules 453 and 455, Texas Rules of Civil Procedure. Rule 453 requires courts of civil appeals to make and file 'conclusions of fact and law upon each material point assigned as error' in cases decided by such courts in which the Supreme Court has jurisdiction of an application for writ of error. Rule 455 reads as follows:

'If either party to a case, decided by a Court of Civil Appeals, shall be of the opinion that the findings of fact are insufficient upon any material issue assigned in that court as error, such party may, in his motion for rehearing, specify the point upon which there is no finding of fact, or upon which the finding made by the court is insufficient, and ask said court to make and file conclusions of fact upon the points indicated in the motion. If the court refuses to make such findings, or if the finding made be insufficient, such action may be assigned as error in application to the Supreme Court for writ of error.'

As this court observed some sixty-five years ago, at a time when the substance of Rules 453 and 455 was contained in statutes, '(a) grave misconception seems to be entertained' by attorneys concerning the duty imposed on courts of civil appeals by the quoted provisions. Nowlin v. Hall, 97 Tex. 441, 79 S.W. 806 (1904). In so far as Rule 453 requires conclusions or findings of fact, it requires only that a court of civil appeals file conclusions or findings that the evidence in a particular case is or is not factually sufficient to support express or implied trial court or jury findings on vital ultimate issues made by the pleadings and evidence. Nowlin v. Hall, supra. The rule does not contemplate or require that a court of civil appeals make evidentiary findings or that its opinion repeat all of the evidence or all of the trial court findings which appear elsewhere in the record. Manchester Fire Ins. Co. v. Simmons, 12 Tex.Civ.App. 607, 35 S.W. 722 (1896, writ ref'd). Manchester was cited with approval in Nowlin v. Hall, supra. And see Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958, at 963 (1950). Indeed, as this court pointed out in Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164 (1948), courts of civil appeals have no jurisdiction to make original findings of fact in cases on appeal; they can only 'unfind' facts. 38 Texas L.Rev. 361, at 368.

Of the forty-four requests made by City for 'findings', nine are for evidentiary recitations, twenty-eight are for recitation or repetition of jury findings appearing in the transcript, five are for undisputed and uncontroverted conclusions of mixed fact and law, and the other two are for original findings which the court had no jurisdiction to make. City's thirty-second point is overruled.

City's first nineteen points are briefed together and are characterized in the application as 'no evidence' points. We did not grant the writ on these points, but City is entitled to have them considered and decided. The points and the argument under them present these basic contentions: (1) the evidence establishes, as a matter of law, that Texas Tower, Graham's employer, was an independent contractor; (2) City owed no duty of care to Graham; (3) if City owed a duty to Graham, the jury's answers to special issues A, B, and C establish that City did not breach its duty; and (4) if City owed a duty to Graham, there is no evidence to support the jury findings that City breached its duty. We will undertake to dispose of the contentions in the order in which they are listed.

Plaintiffs alleged in their trial petition that, at the time of his fatal injuries, Graham was working in the storage tank as Texas Tower's employee and as City's business invitee. The allegation could be true only if Texas Tower was an independent contractor. With the parties thus in agreement that Texas Tower was an independent contractor, we need not concern ourselves with the evidence or jury findings bearing on that issue, and we will assume that Texas Tower was an independent contractor.

The other three listed contentions cannot by fully understood or adequately evaluated without a statement of relevant background facts. The following statement of facts is taken from the opinion of the court of civil appeals and is undisputed.

'The fatal fall made the basis of this suit was inside the bowl of a 500,000 gallon steel water storage tank * * *. Deceased was employed by defendant, Texas Tower and Construction Company, as a painter, which classification included both painting and sandblasting work. He was not employed to replace the spider rods as that work would be done by a separate craft. The deceased was engaged in a sandblasting operation on the interior of this tank at the time of his fall. This operation was performed by starting at the top of the bowl and sandblasting a strip of the wall from the top of the bowl to the bottom. The deceased would sit in a bosun chair which was suspended by a rope, and would let himself down toward the bottom of the bowl as he sandblasted the section of the strip he was doing. As a strip was completed at the bottom of the bowl, the equipment would be moved over and a new start would be made at the top of the bowl. There were steel rods called tie rods or spider rods which were attached to the center of the bowl and which ran parallel to the ground to the sides of the bowl where they were attached to the sides by brackets. These rods were located near the top of the bowl and were used in this sandblasting operation to support boards upon which deceased would lie as he moved his equipment from one spot to another in beginning a new strip. When a strip was completed, deceased would climb back to the top of the bowl by ladder, and a second workman would pull the bosun chair back up to the top of the bowl by rope, so it could be moved to another location. A strip had just been completed and deceased had crawled back up the ladder and the second workman had pulled the bosun chair up to the top when the fall occurred. The deceased was off of the ladder but had not had time to move the rigging and get back into the bosun chair at the time of the fall. The deceased fell about 40 feet to the bottom of the bowl and then down into a large pipe, called a riser, connecting the bowl with the ground. Deceased then fell almost 100 feet inside the riser to near the ground.

'The evidence also showed: that the deceased suffered his fall because the wall of the water tank collapsed allowing one of the brackets to pull through; that this bracket was at the end of one of the tie rods upon which the board or boards was or were lying. The wall of the tank was about a quarter of an inch thick at the spot it had pulled through. The thinning of the wall had been caused by rust and corrosion. * * *'

Plaintiffs seek to predicate liability of City upon breach by it of the duties of care owed by an owner or occupier of land to a business invitee. Stated generally, these duties require elimination, or warning to the invitee, of hidden conditions which are unreasonably dangerous and which are known to the owner or occupier but are unknown to the invitee. They also require an owner or occupier to make such an inspection of the premises to discover hidden dangers as would be made by a reasonably prudent person in the exercise of ordinary care. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup., 1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950). City insists, however, that the facts in this case bring it within an exception to the foregoing general rule, which exception is stated in an annotation in ...