Columbia Engineering Intern., Ltd. v. Dorman, 8324

• Decision Date: 17 April 1980
• Docket Number: No. 8324,8324
• Citation: 602 S.W.2d 72
• Parties: COLUMBIA ENGINEERING INTERNATIONAL, LTD., Appellant, v. James M. DORMAN et al., Appellees.
• Court: Texas Court of Appeals

Page 72

602 S.W.2d 72

COLUMBIA ENGINEERING INTERNATIONAL, LTD., Appellant, v. James M. DORMAN et al., Appellees.

No. 8324.

Court of Civil Appeals of Texas, Beaumont.

April 17, 1980.

Rehearing Denied May 15, 1980.

John H. Benckenstein, Beaumont, for appellant.

Joe H. Tonahill, Jasper, for appellees.

DIES, Chief Justice.

Sometime prior to March 1974, the Kirby Lumber Corporation (hereafter Kirby) acquired a plant (Evans Co.) across Highway 92 (east side) from its mill in Silsbee with the intention to build in its place a particle board plant. The consulting engineer for the plant was Columbia Engineering International, Ltd. (hereafter Columbia). The general contractor was Casey Enterprises, Inc. (hereafter Casey). McBride Steel Erection Corp. (hereafter McBride) was a subcontractor fabricating steel. Minnis Erection Corporation (hereafter Minnis) was a subcontractor and dismissed from the case on summary judgment. United States Fidelity and Guaranty Co. (hereafter United) was intervenor.

Next to the east side fence of the newly acquired property Gulf States Utilities Company (hereafter Gulf States) owned and maintained a high voltage tower, and the lines extended across Kirby's fence and over its property.

Part I

On March 4, 1974, James M. Dorman and Walter W. Blackshear ironworkers, employees of McBride were assisting in the unloading of prefabricated steel near this east fence. This steel was "hooked" on both ends from the truck on which it was delivered by cables from a "cherry picker" with a "telescopic" (movable) crane or boom. The operator of the crane, Flowers also a McBride employee would then swing the steel off the truck and lower it to the ground. Dorman and Blackshear "guided" the steel, one at each end, holding the apparatus attached to the cable. On this date (March 4, 1974), the crane came into contact with Gulf States' power line causing 15,000 volts of electricity to flow through the cable and the bodies of Dorman and Blackshear, both of whom were horribly and permanently injured.

A suit resulted in which Dorman and Blackshear were plaintiffs below.

Shortly, prior to trial, Dorman and Blackshear settled their cases with Kirby, Gulf States, Casey, Minnis, and United for four hundred thousand dollars ($400,000). Suits for contribution and indemnity flowed between the settling defendants and Columbia. After a lengthy trial, a jury found Columbia one hundred percent negligent and awarded Dorman and Blackshear substantial damages. Additionally, the trial court decreed that Columbia should respond to their cross-actions for indemnity and ordered Columbia to make them whole for the four hundred thousand dollars ($400,000) they had paid in settlement prior to trial to Dorman and Blackshear. It is from this judgment Columbia has perfected this appeal. For clarity, the parties will be referred to in this opinion generally by name.

Columbia's first point is that "(t)he trial court erred in admitting into evidence the testimony of . . . Dorman, that he assumed that (Columbia's) Engineer, . . . or someone from Columbia indicated to him and Blackshear, to place the steel beams against the fence where the accident occurred, over (Columbia's) objection that such evidence was hearsay, speculative and not based upon fact."

Herb Moss was Columbia's main supervisor and engineer on the work site. On March 4, 1974, Dorman and Blackshear began unloading the steel dunnage further from the fence referred to herein and further from the power line. Dorman then testified his foreman (Milton Nanny, Sr.) came to him and ordered him to move the steel closer to the fence (and therefore the power line). Dorman at first refused, but Nanny, Sr., insisted saying, "Because Mr. Moss says there is going to be a little building come out here and it's going to be in the way." This evidence did not derive its probative force from the competency and credibility of Dorman and was, therefore, inadmissible as hearsay. See the many authorities cited in 24 Tex.Jur.2d Evidence § 557 at 51 (1961); also see 24 Tex.Jur.2d Evidence § 560 at 57 (1961).

However the trial court ruled: "(T)hat portion of the testimony is stricken," and "The jury is admonished not to consider it for any purposes of what Nanny told him that Moss said." "This therefore cures the error." 1 C. McCormick & R. Ray, Texas Law of Evidence § 29 (Texas Practice 2d ed. 1956). This point is overruled.

We believe this appeal will be better understood if we next take up Columbia's Points 6 through 11. These points contend the findings of negligence and proximate cause against Columbia are supported by no or insufficient evidence or are against the great weight and preponderance of the evidence.

We review these points under the guidance of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Dorman testified he saw Nanny, Sr. (his McBride supervisor) and Moss talking. He than saw Moss point to the dunnage (on which the steel was placed) and then "pointing . . . to move it over towards the fence." Nanny then came over the told Dorman to move it. He (Dorman) testified Moss gave "us the highball" which means he wanted the dunnage and steel placed next to the fence (and power line).

Herbert Moss began working for Columbia in June 1973 on loan from another company. He was a consulting engineer and "had to coordinate the work (at Kirby)." He inspected the work and then would certify to Kirby the amount of work that would be done by each contractor. It was on this basis Kirby paid the contractors. Friday before the accident, Nanny, Sr. (McBride foreman) asked Moss if he could unload the steel at the south end of the blending building. Moss answered, "I told him I had no objection to him unloading that steel there, but to watch that high power line above. . . ." The blending building was sixty or seventy feet from the east fence (and hence about that much farther from the power line). However, Moss said Nanny was going to unload "(a) little southwest of the blending building, (w)hich would be by the fence"; to which Moss had no objection when asked by Nanny, Sr. He denied telling Nanny, Sr. "where to locate this steel at a fenceline on Monday," but he "wasn't surprised that they unloaded it over there." He didn't know Nanny, Sr., was doing this or he would have stopped it and, "Yes, sir, I had the authority to stop him. . . ." On examination by Kirby's attorney, Moss admitted the hazard would have been the same whether the steel was unloaded at the Friday or Monday location. Kirby knew nothing of the unloading. Kirby was relying on Moss "as the construction supervisor." Moss thought Columbia was a little unfair in not providing him with more help. He took no action to de-energize this power line. Columbia represented Kirby insofar as safety was concerned in dealing with the contractors. Had he been furnished more help by Columbia "probably" this wouldn't have happened. He was asked, "Well, it was a joint thing between you and Nanny (where to unload the steel)." To this he answered, "Well, in a way." He was asked, "do you think the steel was laid in an unsafe spot?" To which he replied, "no doubt about it." He admitted he had the power under the contract to direct the site of unloading.

Nanny, Sr., testified the day the accident happened he decided where the steel was to be stacked, "but prior to that Herb Moss and myself had talked about it, and he said that (he) agreed to it."

McBride testified Columbia was to supervise the job.

Both Dorman and Blackshear understood Moss was "over the whole job." Blackshear had been previously ordered by Moss to move a shack.

Jack Arnold Hickman, general foreman for Casey, was asked:

"Q. In other words, he (Moss) was the supreme decision maker so far as the work that went on in this project?

"A. Yes sir.

"Q. Did that go on from the time you went on the job until you left?

"A. All the time I was out there.

"Q. Whatever he said you all went by it?

"A. Yes sir.

"Q. Now, who, between those two gentlemen (Nanny, Sr., and Moss) would have the decision making authority where to locate that steel?

"A. I would say Mr. Moss."

Robert Allen Sheffield, superintendent for Gulf States, testified he had received no request to de-energize the power line in question, and, if one had been made, it would have been de-energized; that such a request would have been a normal procedure; that they (Gulf States) frequently get such requests, or to provide insulating devices.

Harlan Walker, resident manager for Kirby, contracted with Columbia for the supervision and inspection in determining how and what and what means were employed in getting the job completed and performed. Moss "was in charge of all operations of the contract." It was Columbia's responsibility, the witness said, to get the line de-energized or protected with a shield. Kirby relied on Columbia to deal with the contractors and see they did their work safely and properly. Columbia "did the construction managing." The general conditions of the contracts were drawn by Columbia. If there were contract disputes between the contractors, or emergencies so that the work needed to be stopped for safety, it was Columbia who resolved it. All changes in plans were made by Columbia. It was Columbia's responsibility to provide safety precautions. If McBride or Nanny, Sr., had come to him asking to unload steel at such and such a place, "I would say they would have had to have seen Herb (Moss)." The coordination of unloading the steel in a safe manner was Columbia's. Kirby relied on Columbia to give any warnings of danger to Dorman and Blackshear.

Richard Flowers, the crane operator, testified that where the steel was unloaded on Friday, the power line was not over the crane. It was Nanny, Sr., he said who told him to move the crane on Monday (the day of the accident). He did not see the cable contact the line, only heard the "pop." The...