Continental Paper Bag Co. v. Bosworth, (No. 377-3540.)

• Court: Supreme Court of Texas
• Writing for the Court: Short
• Citation: 269 S.W. 83
• Parties: CONTINENTAL PAPER BAG CO. et al. v. BOSWORTH.
• Docket Number: (No. 377-3540.)
• Decision Date: 25 February 1925

269 S.W. 83

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

(No. 377-3540.)

Commission of Appeals of Texas, Section B.

February 25, 1925.

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

Suit by Carrie Bosworth against the Continental Paper Bag Company, in which defendant impleaded the Western Indemnity Company and the Fidelity & Casualty Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (215 S. W. 126), and the Fidelity & Casualty Company brings error. Affirmed.

Baker, Botts, Parker & Garwood and Guy Graham, all of Houston, for plaintiff in error.

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

SHORT, J.

In the view we take of this case, only a brief statement of its nature is necessary. Miss Carrie Bosworth, a young woman 19 years of age when injured, afterwards brought a suit against the Continental Paper Bag Company to recover damages for personal injuries suffered by her, whereby she entirely lost the sight of one of her eyes, with sympathetic disturbance of the other.

Her pleadings stated that the injury was occasioned by the failure of the Continental Paper Bag Company to use ordinary care in protecting her from injury liable to be inflicted, by the operation of a certain saw machine, which had been placed near where she worked and which threw some particles of metal on each side, one of which struck her in the eye and destroyed the sight.

The Continental Paper Bag Company answered by general denial, and that W. H. Devers was an independent contractor and had employed Miss Bosworth to work for him, and the Continental Paper Bag Company was not responsible to her for the injuries inflicted. It specially pleaded that Devers was doing the work for the company in which Miss Bosworth and other employees were engaged under the following agreement:

"Agreement between Continental Paper Bag Co. of Texas and W. H. Devers, entered into the 11th day of February, year 1916, at Houston, Harris county, Texas:

"The machinery, type, cuts, motors, belts in Continental Paper Bag Company's warehouse, together with the space occupied by same, we rent to you at forty dollars ($40.00) per month, with the provisal that W. H. Devers uses same for printing paper bags, writing paper, and other such items as Continental Paper Bag Company may require printed, and that W. H. Devers does not print any bags or wrapping paper for any other firm or parties.

"Prices W. H. Devers is to charge Continental Paper Bag Company will be regular printing price list in effect at the time orders are executed, subject to the following discounts:

"Paper Bags 10 per cent. off List.

"Wrapping Paper 20 per cent. off List.

"It is also agreed that on orders from Waples-Platter Gro. Company to Continental Paper Bag Company that W. H. Devers allow Continental Paper Bag Company five per cent. (5%) additional discount to those mentioned above.

"All power for operation of machinery, also material such as ink, rollers, fuel, oil, paste, and general upkeep of machinery to be supplied by W. H. Devers.

"It is further agreed that either party to this agreement can terminate same within thirty days from date of a written notice to this effect.

                  "[Signed]
                     "Continental Paper Bag Co. of Texas
                                    "Horace Cammack
                     "W. H. Devers."
                

The Continental Paper Bag Company by cross-plea impleaded Western Indemnity Company and Fidelity & Casualty Company, claiming that they were its indemnitors against the alleged liability, but that each had denied such and had refused to defend the Continental Paper Bag Company as each had agreed to do, so that this company was making its defense to the suit independently, and praying that the liability to defend be established against the companies impleaded and its right to indemnity allowed.

These impleaded defendants answered separately, each denying liability in the case to the Continental Paper Bag Company. They did not appear through their counsel for this company, though in the trial they made common cause against the plaintiff with the original defendant. These impleaded defendants were never parties to the plaintiff's action.

The case was tried to a jury on special issues, and a verdict having been returned in favor of the plaintiff in accordance with her plea, a judgment was afterwards entered thereon against the Continental Paper Bag Company in favor of the plaintiff for $8,000, with lawful interest thereon from the date of the judgment until paid, and in favor of the Continental Paper Bag Company against the Fidelity & Casualty Company a conditional judgment for $5,000, the amount of its policy, with lawful interest from the date thereof, contingent upon loss from payment of such judgment to the extent of such loss so arising, and also in favor of the Continental Paper Bag Company against both companies impleaded in the sum of $200 for attorney's fees on account of their failure to defend against the plaintiff's suit, with lawful interest from the date of the judgment.

The Continental Paper Bag Company and Fidelity & Casualty Company each filed its motion for new trial, separately. The motions were overruled and each prosecuted an appeal to the Court of Civil Appeals of the First Supreme Judicial District, filing separate briefs. The Court of Civil Appeals, upon consideration of the case, affirmed the judgment of the trial court in all things. Continental Paper Bag Co. v. Bosworth, 215 S. W. 127. The Continental Paper Bag Company and the Fidelity & Casualty Company each filed its motion for a rehearing, and, these motions having been overruled, the Fidelity & Casualty Company alone filed its application for a writ of error to the Supreme Court, which upon consideration was granted. One of the notations by the Supreme Court indicates that the application was granted on account of the apparent conflict of the decision in the case of Texas Short Line Co. v. Waymire, 89 S. W. 453, rendered by the San Antonio Court of Civil Appeals, and that rendered by the Court of Civil Appeals in this case. The further notation made upon the docket was evidently the result of the assumption by all parties that the Continental Paper Bag Company had also filed an application for writ of error. All parties to the appeal from the judgment of the district court have filed separate briefs in this court.

Upon an investigation of the record and after the application for writ of error had been granted, counsel for the original plaintiff filed a supplemental brief calling attention to the fact that he had, for the first time, discovered that the Continental Paper Bag Company had not made any application for writ of error to the Supreme Court. The correctness of this contention is evident from the record, and it necessarily follows that the judgment of the Court of Civil Appeals, in favor of the original plaintiff against the Continental Paper Bag Company, eo instanter upon the rendition of such judgment, became final, and therefore this court is without jurisdiction to determine whether any error was committed in respect to the matters involved in that branch of the case by said judgment. The legal status of these particular parties touching this transaction is irrevocably fixed and unalterably determined thereby. This court is without authority to disturb the decree rendered in the original plaintiff's favor against the Continental Paper Bag Company by the Court of Civil Appeals. Complete Tex. St. 1920, arts. 1540, 1541; McGhee v. Romatka, 92 Tex. 241, 47 S. W. 520; Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279, and the cases cited.

As between the Fidelity & Casualty Company and the Continental Paper Bag Company, the former contends that no liability attached to it under the terms of the policy issued by it to the latter. It also contends that there is a conflict between the opinion of the Court of Civil Appeals in this case and that rendered by the Court of Civil Appeals of the Fourth District in that of Texas Short Line Co. v. Waymire, 89 S. W. 453.

The plaintiff in error's fourteenth assignment of error is as follows:

"The court erred in permitting the defendant Continental Paper Bag Company to file its first trial amendment over the objections of this defendant Fidelity & Casualty Company, of New York, as is more fully shown in this defendant's bill of exception No. 1."

The bill of exception No. 1 states substantially that a trial amendment was permitted to be filed on application of the Continental Paper Bag Company after the evidence had been closed and the charge of the court had been prepared and submitted to counsel for examination, and after exceptions to the charge had been presented by the plaintiff in error. No motion was made for leave to withdraw its announcement of ready or to...