Cowart v. Meeks

• Decision Date: 12 January 1938
• Docket Number: No. 2121-6994.,2121-6994.
• Citation: 111 S.W.2d 1105
• Parties: COWART et al. v. MEEKS et al.
• Court: Texas Supreme Court

111 S.W.2d 1105

COWART et al. v. MEEKS et al.

No. 2121-6994.

Commission of Appeals of Texas, Section A.

January 12, 1938.

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

Action for damages for personal injuries by M. A. Cowart and O. A. Cowart against the Harlington Hotel Company, Inc., and J. N. Meeks. Judgment for the Harlington Hotel Company, Inc., was affirmed and judgment against defendant Meeks was reversed and rendered by the Court of Civil Appeals, 84 S.W.2d 845, and plaintiffs bring error.

Affirmed.

Seabury, Taylor & Wagner, of Brownsville, and Osce Fristoe, of Harlingen, for plaintiffs in error.

Birkhead, Beckmann, Stanard & Vance, Harold K. Stanard, Eskridge & Groce, Walter Groce, and Russell Talbott, all of San Antonio, and Carter & Stiernberg, of Harlingen, for defendants in error.

GERMAN, Commissioner.

The Court of Civil Appeals has made a very concise and accurate statement of the essential facts, and we adopt substantially all of same without the use of quotation marks.

The Harlingen Hotel Company, Inc., was the owner and operator of the Madison Hotel, located in the city of Harlingen, Tex. J. N. Meeks entered into a written contract with the Harlingen Hotel Company to make certain repairs and alterations upon the Madison Hotel, which consisted principally in the removal of the second and third stories of one wing of the hotel. Meeks entered into an arrangement with Glenn Sorrell to remove all débris and rubbish from the premises. M. A. Cowart and O. A. Cowart were, for reasons peculiar to themselves, assisting Sorrell in this undertaking of keeping the débris and rubbish removed from the hotel premises. Sorrell had agreed to keep this rubbish cleaned up and not to permit it to accumulate, as otherwise drainage pipes would become choked and water damage result.

The work of removing the second and third stories of this wing of the hotel had about been accomplished, including the fire escape attached to these two stories, when the accident herein involved occurred. Sorrell and his associates, the two Cowarts, had kept the rubbish removed during the progress of the work to the satisfaction of all concerned. The rubbish was all delivered to them either on the ground or in their trucks. They had nothing to do with the throwing of the rubbish from the building, but their entire duty was to remove it from the premises after it had been thrown from the building.

On the occasion in question, the two Cowarts had placed their truck near the building so that it might be loaded with rubbish, and desiring to know how much more rubbish would be thrown from the building that day, so as to determine whether they would have to make a return trip or possibly have to work after dark, they climbed to the top of the first story of this wing by using the remaining section of the fire escape. They found that there was not a great amount of rubbish, and began to descend the fire escape when a part of the wall and the fire escape collapsed and fell to the ground, as a result of which the two Cowarts sustained personal injuries.

Originally the two Cowarts filed separate suits, but by agreement of all the parties the suits were consolidated and tried as one suit. The suit was tried at the February term, 1934, and...