Cotton v. Henger

• Decision Date: 21 February 1958
• Docket Number: No. 15287,15287
• Parties: Maude Rhody COTTON et al., Appellants, v. W. C. HENGER, d/b/a Henger Construction Co., et al., Appellees.
• Court: Texas Court of Appeals

Page 299

312 S.W.2d 299

Maude Rhody COTTON et al., Appellants, v. W. C. HENGER, d/b/a Henger Construction Co., et al.,

Appellees.

No. 15287.

Court of Civil Appeals of Texas, Dallas.

Feb. 21, 1958.

On Rehearing March 21, 1958.

Further Rehearing Denied April 18, 1958.

Burford, Ryburn & Ford, Clarence A. Guittard and H. Sam Davis, Jr., Dallas, for appellants.

Allen Wight, Touchstone, Bernays & Johnston, Robertson, Jackson, Payne, Lancaster

& Walker, D. L. Case and Fred H. Benners, Dallas, for appellees.

DIXON, Chief Justice.

On June 21, 1946 a gas explosion occurred in the basement of the Baker Hotel in Dallas, Texas, killing and injuring a number of persons. The explosion took place in an area where construction work had been in progress for about ten months involving extensive repairs, alterations, and additions to the Hotel's storerooms, kitchen, refrigerators, and other facilities. There is evidence that the explosion was caused by a leaky gas line installed in connection with the construction work.

Following the explosion 20 suits for damages involving 83 plaintiffs were filed against the Contractor, W. C. Henger, doing business as Henger Construction Company. Each plaintiff alleged that the explosion was caused by the Contractor's negligence. Eight of these suits are death cases; the other 12 are personal injury cases. Since the issues as to liability are alike in each of the 20 cases, the suits have been consolidated. For purposes of this appeal, the parties have agreed that only the pleadings in the original cause of Cotton v. Henger need be included in the record.

William Eaton Cotton was killed in the explosion. He was an employee of the Baker Hotel. Texas Employers Insurance Association carried workmen's compensation insurance on the employees of the Hotel, and has paid to Maude Rhody Cotton and William Eaton Cotton, Jr., widow and minor son of the deceased, a total sum of $7,200, the amount of the benefits due under the insurance coverage. Thereafter Maude Rhody Cotton, William Eaton Cotton, Jr., and Mildred Lee Cotton, mother of deceased, instituted this negligence action for damages against the Contractor. Texas Employers Insurance Association intervened to recoup for benefits paid to Maude Rhody Cotton and William Eaton Cotton, Jr.

The defendant W. C. Henger answered, denying that he was an independent contractor and denying that he was responsible for the explosion. In particular he denied that he was an independent contractor with reference to the plumbing work, that work having been let by the Hotel itself directly to William Pitt Martyn, who installed the gas line where the explosion is alleged to have occurred.

The plaintiffs did not make the Hotel a party defendant. They sued only Henger. However the Hotel was made a third-party defendant by Henger, who asked judgment over against the Hotel in the event judgment should be rendered against him. It is Henger's claim that under the terms of his contract with the Hotel he is entitled to judgment that cross-defendant Baker Hotel discharge directly any judgment recovered against him herein.

The Hotel replied to Henger's third-party action with a plea in abatement and an answer to the merits.

On June 4, 1954 defendant Henger filed a motion for summary judgment. He alleged that, as related to the construction work being done, he was an agent and employee of the Baker Hotel within the meaning of Art. 8306, sec. 3 Vernon's Ann.Civ.St., and that since plaintiffs' decedent was also an employee of the Hotel, plaintiffs had no cause of action against him, the defendant. Henger also asserted in his motion that he was not an independent contractor on the job, did not have control of the premises in question; and in particular did not have control or supervision of the plumbing work being done, or the installation of the gas line which plaintiffs say was defective in that it leaked gas.

On November 15, 1956 the trial court sustained defendant's motion and rendered a summary judgment that plaintiffs and intervenor in the consolidated cases take nothing against defendant Henger. Judgment was also rendered that Henger take nothing against Baker Hotel, third-party defendant.

This appeal was taken by all the plaintiffs and the intervenor in the consolidated cases from the summary judgments rendered against them.

Facts.

The record before us contains plans and specifications for the jub, five affidavits, six depositions, a number of contract documents, work orders, letters, numerous other exihibits, and the stipulations entered into by the parties.

1. Original Agreement.

On June 20, 1945 the Hotel and the Contractor executed a contract called 'A Form of Agreement Between Contractor and Owner.' It recites that it is a standard form issued by the American Society of Architects for use when the cost of the work plus a fee is the basis of the payment.

The substance of some of the provisions of the Agreement follows:

Art. 1. The Contractor agrees to provide all labor and materials and to do all things necessary for the proper construction and completion of the work described and shown on drawings, specifications and general conditions to be delivered by the Architect. If anything in the General Conditions is inconsistent with this Agreement, the Agreement shall govern.

Art. 2. The Hotel through the Architect may from time to time by written instructions make changes in the drawings and specifications.

Art. 3. The Contractor agrees to furnish efficient business administration and superintendence and to use every effort to keep upon the work an adequate supply of workmen and materials and to secure its execution in the best and soundest way.

Art. 4. The Hotel agrees to pay to the Contractor as compensation for his services 10% of the total cost of all labor and materials.

Arts. 5 and 7. Certain named costs, including all labor directly on Contractor's payroll, materials, and the amounts of all separate contracts are to be paid direct by the Hotel.

Art. 10. All portions of the work that the Contractor's organization has not been accustomed to perform, or that the owner may direct, shall be let by the Hold direct. The Contractor, being fully responsible for the general management of the building operation, shall have full directing authority over the execution of separate contracts.

2. Other Contract Documents.

On June 30, 1945 the specifications for the job were completed by the Architect. The Contractor Henger, in his deposition testified that the drawings and specifications were not complete when the original agreement was signed, but were delivered later. He said it is not unusual on a cost plus job for the plans to be completed and delivered after signing the contract because the contractor does not have to make up his mind in advance how much to charge. Other contract documents were the 'General Conditions' and 'Supplementary General Conditions.'

3. 'General Conditions.'

The substance of some of the provisions of the written 'General Conditions' follows:

Art. 9. The Contractor shall enforce strict discipline and good order among his employees, and shall not employ on the work any unfit person or anyone not skilled in the work assigned to him.

Art. 12. The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Hotel's property from injury or loss arising in connection with this contract. He shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents.

Art. 14. The Contractor shall keep on his work, during its progress, a competent superintendent, satisfactory to the Architect. The superintendent shall not be changed except with the consent of the Architect, unless the superintendent proves to be unsatisfactory to the Contractor and ceases to be in his employ. The superintendent shall represent the Contractor in his absence and all directions given to him shall be as binding as if given to the Contractor.

Art. 27. The Contractor shall maintain such insurance as will protect him from claims under the Workmen's Compensation Acts, and from any other claims for damages for personal injury, or death.

Art. 35. The Hotel reserves the right to let other contracts in connection with this work.

Art. 36. The Contractor shall as soon as practicable after the execution of the contract, notify the Architect of the names of subcontractors proposed for the principal parts of the work, and shall not employ any that the Architect may object to as incompetent or unfit. The Contractor agrees that he is fully responsible to the Hotel for the acts and omissions of his subcontractors and of persons either directly or indirectly employed by them. Nothing contained in any of the contract documents shall create any contractual relation between any subcontractor and the Hotel.

Art. 38. The Architect shall have general supervision of the work. He is the agent of the Hotel only to the extent provided in the Contract Documents, and shall have written authority to act in special instances. He has authority to stop work when stoppage may be necessary to insure proper execution of the contract. He is the interpreter of the contract and the judge of its performance. He shall side neither with the Hotel nor the Contractor, but shall use his powers under the contract to enforce its faithful performance by both.

4. 'Supplementary General Conditions.'

The substance of some of the provisions of the 'Supplementary General Conditions' follows:

Sec. 1.02. The Work includes all demolition and general construction, refrigerator work, and all plumbing, heating, ventilating, refrigeration, and electric wiring. It includes disconnecting hot water, cold water, gas, steam and waste piping and electric wiring connections to the relocated or newly provided equipment.

Sec. 1.08. The Contractor shall make all necessary arrangements and perform all services required for...