Continental Paper Bag Co. v. Bosworth

• Decision Date: 14 October 1925
• Docket Number: (Motion No. 6602.)
• Citation: 276 S.W. 170
• Parties: CONTINENTAL PAPER BAG CO. et al. v. BOSWORTH.
• Court: Texas Supreme Court

276 S.W. 170

CONTINENTAL PAPER BAG CO. et al. v. BOSWORTH.

(Motion No. 6602.)

Commission of Appeals of Texas, Section B.

October 14, 1925.

Error to Court of Civil Appeals of First Supreme Judicial District.

On motion for rehearing. Motion overruled.

For former opinion, see 269 S. W. 83.

Baker, Batts, Parker & Garwood, and Guy Graham, all of Houston, for plaintiffs in error.

Presley K. Ewing, of Houston, for defendant in error.

SHORT, J.

The motion for rehearing is very able.

It is contended that the ruling upon the allowance of the trial amendment is too strict as to practice. However that may be, the decision of a trial court in permitting the filing of a trial amendment to the pleadings before the case goes to the jury is discretionary, and will not be reviewed, in the absence of an abuse of discretion. No such abuse is shown in this case. The fact that the objection against the amendment was accompanied by a statement that it would necessitate a continuance could not show that a continuance was necessary. None was asked, and no grounds were shown, even informally, why one should be granted. The allowance of an amendment over the mere objection that it will necessitate a continuance to obtain rebuttal evidence is not reversible error.

A second ground of the motion is that the policy sued upon covered only a store and warehouse, whereas the injury in suit was occasioned by printing machinery.

The policy contains as one of the "conditions" of liability to assured the provision that it is issued "in consideration of the premium charged therefor and of the statements" which are attached and which the assured warrants to be true by the acceptance of such policy. Among these latter are statements that the assured is a paper bag company; that the premises in which the insurance is effective "are used for the purposes" of "store and warehouse"; and that the assured "conducts no business on the premises except * * * store and warehouse."

At the time of the policy, the assured had no printing establishment or machinery in this place, but was having its product labeled at a shop of a third person. Subsequently, without notice to the insurance company, it installed in these premises printing machinery for that purpose, and because of this move the injury in suit occurred and liability of insurer is claimed.

All of the evidence upon the point of whether such an addition was within the general description of "store and warehouse * * * purposes" and "business" is from one witness, who was in that occupation, and the manager of assured:

"The printing of bags and paper to fill our orders, and the maintenance and operation of a place for the purpose of printing, was a necessary, usual, and customary part of a paper store business as conducted by the Continental Paper Bag Company of Texas, and that is true, not only for our business, but of similar stores."

In American usage, the word "store," when employed to designate a place of business, is a broad one. It signifies not merely a warehouse, storehouse, or storeroom, but may include in its meaning a business establishment where personalty is kept and sold, and incidently gotten in salable condition.

Burglarizing a banking house has been held to be committing the crime in a store, shop, or warehouse (Wilson et al. v. State, 24 Conn. 57); entering a store, that of entering a shop (Louisiana v. Moore, 38 La. Ann. 66); the right to tax a shop or store, that to tax the office furniture, fixtures, and pledges of a pawnbroker's establishment (Boston Loan Co. v. Boston, 137 Mass. 332); and a representation that an insured building is to be used for stores has been held not to be breached by the fact that the building contained a bakery, restaurant, and oven (Richards v. Washington F. & M. Ins. Co., 60 Mich. 420, 27 N. W. 586). A person who mends watches in a jewelry store or operates a candy pulling machine in one dealing in confections would be entitled to a lien under a statute applicable to stores, shops, etc. R. S. art. 5644.

These considerations demonstrate that the meaning of the word is quite broad, and frequently includes analogies and incidents. In dry goods stores are often found artisans who do alteration and repairs, such as dressmakers, tailors, and shoemakers, and who have their machines for the purpose; in drug stores are pharmacists who frequently, by aid of utensils and machinery, prepare and shape the medicinal output of the establishment; in grocery stores, persons who roast and grind coffee and weigh, slice, and parcel out articles of food by means of machinery; and in almost any sort of a store is some department which, with mechanical aids, prepares what is sold for delivery. Each merchant using paper bags and the like ordinarily, as shown by evidence in this case, has something peculiar to his own business printed on them; and, if the seller attends to this, until a buyer comes, what words or devices are needed cannot be known. It may be convenient and conducive of trade to have this necessary adjunct of sale present. If, as the testimony shows, the printing of its stock was a necessary and usual part of a paper store business, then the statement in the policy in the present case was easily true, and the Supreme Court must accept the approval of such evidence by the courts below.

Another contention of the insurance company is that the original opinion is in error in failing to examine the negligence questions in the case. The former opinion viewed these questions as closed because the original defendant has allowed the affirmance of the Court of Civil Appeals to stand against it without applying for writ of error. They are, indeed, concluded as to that defendant, but the motion for rehearing and further consideration of the record show that they are not as to the insurer.

The injured person having sued the defendant, the latter brought in the insurance company, and, while, as noted and acted upon in the opinion, it did not become a party to plaintiff's suit, it in its own behalf purely made complete defense both by its answer and during the trial, as it had a right to do certainly after it was in, since its own liability would be defeated if plaintiff's suit was, and the policy entitled it to notice of suits (Washington, etc., Co. v. District, 161 U. S. 316, 16 S. Ct. 564, 40 L. Ed. 713), so that it had a right to appeal from adverse judgment in that respect, as it did, and to have those questions examined on writ of error (Weems v. Watson, 91 Tex. 35, 40 S. W. 722; Cleveland v. Shaw [Tex. Civ. App.] 119 S. W. 883). This necessitates the examination of the negligence questions.

It is conceded that the printing company was an independent contractor in every sense, and that to it was furnished by the paper bag company the space and machinery with which to do the work. The space was too narrow to separate the equipment sufficiently to avoid the occurrence that caused the injury in suit. The contractor undertook to arrange the machines, but could not have done so in a manner to avoid like occurrences to some of its employees. This occurrence was the emission of hot particles of metal from the sawing machine toward the printing press upon which the plaintiff was working, whereby one of the pieces entered her eye, raising a blister upon it, and causing the loss of its sight. The saw machine threw out such particles of metal naturally and necessarily in the course of the work. While the paper bag company furnished a hood to prevent this, and while in some of the work it could thus be prevented, in practically all of it, because of the absence of a certain attachment called a carriage, the hood could not be used. There is evidence that in this character of printing the use of the hood was usually and customarily eliminated:

"That machine in practical operation was a machine that had no hood. * * * We could not use what came with it. Under those circumstances there was not any device to catch these pieces of flying metal. * * * With a machine constructed as this machine was, it is not customary to use the hood in the work."

The paper bag company furnished no other screen to arrest the...