Continental Paper Bag Co. v. Bosworth

• Decision Date: 03 July 1919
• Docket Number: (No. 7762.)
• Citation: 215 S.W. 126
• Parties: CONTINENTAL PAPER BAG CO. et al. v. BOSWORTH.
• Court: Texas Court of Appeals

215 S.W. 126

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

(No. 7762.)

Court of Civil Appeals of Texas. Galveston.

July 3, 1919.

Rehearing Denied October 9, 1919.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by Carrie Bosworth against the Continental Paper Bag Company, in which the Western Indemnity Company and the Fidelity & Casualty Company were impleaded. From judgment rendered, the defendant and the Fidelity & Casualty Company appeal. Affirmed.

Baker, Botts, Parker & Garwood, R. C. Patterson, and Guy Graham, all of Houston, for appellant.

Presley K. Ewing, of Houston, for appellee.

GRAVES, J.

Miss Carrie Bosworth brought this suit against the Continental Paper Bag Company, a corporation, to recover damages for the loss of one of her eyes. She alleged: That at the time of the injury the bag company was engaged in the business of furnishing to merchants wrapping paper and bags, occupying for that purpose a two-story brick building in Houston, using the second story for its offices and stock, and the first story for its printing outfit, which, being operated by electricity, turned out the bags having printing thereon. That she herself was then engaged in the ordinary course of her service, during the operation of such printing outfit, in feeding the paper bags to a press machine, when a piece of hot metal from the saw machine part of the printing equipment, only a few feet distant—flew into one of her eyes, burning it and putting it out. That plaintiff was at the time of her injury in the employment of the bag company, serving it in the way stated, but, if not, she was then in the employment of one W. H. Devers, the bag company's independent contractor in that behalf, and that, in either event, the bag company was liable to her on account of the exceptional and special facts of the situation, which were further averred as follows:

"That if plaintiff was in the employment of W. H. Devers, and he under agreement to print paper bags, wrapping paper, etc., for defendant paper bag company, as alleged in its answer, then plaintiff says that under the agreement between them, according to the true intent, purport, and meaning thereof, the defendant paper bag company bound and obligated itself to furnish and supply to him, W. H. Devers, the machinery and equipment with the space occupied by the same for printing such paper bags, wrapping paper, etc., including the space whereat plaintiff was working when she was injured, as alleged, and including the machine or appliance to which she was feeding bags at the time, and including the other nearby machine from which the metal flew and went into her eye, as before alleged; which machinery, appliances, and place were then and there so furnished and supplied by it, paper bag company, for the mutual benefit and advantage of itself and said W. H. Devers, to be used exclusively for printing paper bags, wrapping paper, and such other items as it might require printed by him, W. H. Devers, at large discount prices, and, in addition, with pay for the use of such equipment, and for the particular purpose and use of such printing for it, and with the contemplation that such would be used by employés of said W. H. Devers in the course of the work by employés such as plaintiff, serving said W. H. Devers in the course of such work, and engaged as plaintiff was at the time of her alleged injury, so that such machinery, appliances, and place were so supplied and furnished by defendant paper bag company, under the implied agreement and duty to said W. H. Devers, and to and inuring for the benefit of his employés in that behalf, including plaintiff, that such should be reasonably fit for the use for which so supplied, furnished, and intended, and reasonably safe and suitable therefor, at least so far as might be in the exercise of ordinary care to that end on its part, which agreement and duty it then and there negligently failed to keep or perform.

"That defendant paper bag company then and there negligently failed to furnish or supply a reasonably safe working place in that behalf for plaintiff in the performance of her aforesaid services, and negligently furnished and supplied a machine for the work to be accomplished in that behalf, being the machine from which said piece of metal flew into the plaintiff's eye, that was not reasonably safe or fit or suitable for such use, in that the same was by it negligently located or caused to be located or permitted to be and remain located at and in an improper and insufficient distance and position from and relatively to the machine and place at which plaintiff was working at the time of her alleged injury, for reasonable safety, and in that the same was by it negligently constructed or caused to be constructed or permitted to be and remain constructed in such improper manner, or negligently furnished it in such defective condition, as allowed the dangerous escape of pieces of metal therefrom, and in that the same was by it negligently left unprovided with a guard or hood or screen or any other means or device to prevent the escape of such dangerous pieces of metal.

"That said machine from which said piece of metal flew out, as furnished by defendant paper bag company, for the work aforesaid, was in its nature located and constructed as it was necessarily and probably dangerous, as said defendant well knew or might reasonably have anticipated, to a person similarly situated and engaged as plaintiff was, and as said defendant might reasonably have anticipated she or some other person would be, when she suffered the injury herein complained of, unless reasonable precautions were taken to prevent pieces of metal from flying therefrom, as same did on the occasion of such injury to plaintiff.

"That a reasonable precaution necessary in that behalf to prevent such danger was a hood, guard, or screen, or some other means or device, which it then and there became and was the duty of the defendant to supply and furnish as a part of the equipment and space provided by it in that behalf, and which it obligated itself to provide, in order to render it, such machine and the place whereat plaintiff was engaged in the course of her employment, reasonably safe for the performance of her services in that behalf.

"That the defendant negligently failed to take such reasonable precaution, or to see that such was taken.

"That defendant failed and refused to furnish sufficient space for the prosecution of said work by said Devers, though it had agreed to furnish the space needful therefor, and thereby it caused said machine, from which the metal flew into plaintiff's eye, to be located in manner it was, in too close proximity to the machine at which plaintiff was serving, as aforesaid.

"That said machine, from which said piece of metal flew into plaintiff's eye, was dangerously and defectively constructed, in that it had no movable carriage or slide, whereby the use of a hood or guard on such machine (as plaintiff says, alternatively pleading as to such hood or guard) was impracticable, for that same would prevent the operator from properly seeing and would endanger his hands or fingers, as defendant paper bag company well knew, or ought in the exercise of ordinary care to have been known, and might reasonably have anticipated; and by reason of such defective construction of such machine the operation of the same where it was, relatively to the plaintiff's working place, was intrinsically and inherently dangerous to one situated and engaged as she was, as likely to throw out pieces of metal into her eyes, unless proper precaution was taken to prevent such result.

"That nevertheless the defendant paper bag company failed to take any precaution to prevent such result, either by providing a screen or device of some sort, to arrest or stop such pieces of metal, or in any other manner, as it could and would have done in the exercise of ordinary care in that behalf.

"That the defendant paper bag company also negligently failed to furnish a sufficient place or space as aforesaid to conduct the work said Devers agreed to perform for it under the alleged contract with him, for the reasonable safety of one operating the machine at which plaintiff was engaged at the time she was injured as aforesaid."

The bag company answered by demurrers, general denial, and special plea that Miss Bosworth was not its employé, but was in the employ of W. H. Devers, who was doing the printing as its independent contractor under an agreement between them, which was in hæc verba set out. By cross-plea it then impleaded the Western Indemnity Company and the Fidelity & Casualty Company, claiming them to be its indemnitors against the alleged cause of action, declaring that they both had denied all liability and refused to defend the suit, thereby breaching their bounden obligations to it, and praying that its right to indemnity against them be established, as well as for attorney's fees.

These two impleaded corporations appeared and answered for themselves, respectively denying indemnity liability to the bag company, refusing to defend or to have their own attorneys appear for it, and, among other matters not here deemed necessary of recitation, separately disclosing that under the terms of the policies severally issued by them to the bag company the indemnity company could be held liable to it only in event Miss Bosworth was found to be the bag company's employé, and the casualty company only in case she was not so found.

As between the original defendant and the two companies it had thus brought in by virtue of the contractual relations declared upon, the matter of whose employé Miss Bosworth actually was at the time of her injury became very material. It appears that, upon the court's rejecting the form for the submission of that issue to the jury as prepared by one of the defendants, the plaintiff's attorney prepared a request embodying it,...