Davis v. Quality Pest Control, C14-82-012CV

• Decision Date: 19 August 1982
• Docket Number: No. C14-82-012CV,C14-82-012CV
• Citation: 641 S.W.2d 324
• Parties: Francis C. DAVIS, et vir., Appellants, v. QUALITY PEST CONTROL, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 324

641 S.W.2d 324

Francis C. DAVIS, et vir., Appellants, v. QUALITY PEST CONTROL, et al., Appellees.

No. C14-82-012CV.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 19, 1982.

Joseph F. Archer, Archer, Peterson & Waldner, Houston, for appellants.

Knox Nunnally, Vinson & Elkins, Anthony Montgomery, Hicks, Hirsch, Glover & Robinson, Houston, for appellees.

Before MILLER, MORSE and JAMES, JJ.

JAMES, Justice.

This appeal is taken from a judgment of dismissal entered against appellants, Francis C. Davis and Nolan M. Davis, upon their refusal to amend their fourth amended original petition after special exceptions thereto had been sustained. We affirm.

On or about December 5, 1978, appellant Francis C. Davis sustained a fall at her apartment which was a unit in the apartment complex known as the King William Apartments. She fell when the crutch on which she was standing slipped on some exterminating fluid which had not yet dried on her vinyl floor. The management of the apartments had contracted with Quality Pest Control (hereafter QUALITY) to spray any apartment in the complex whose tenant was desirous of accepting the extermination service.

Mrs. Davis and her husband originally brought suit against QUALITY only. QUALITY, in turn, filed a third-party action against King Williams Apartments (a company or business entity, hereafter referred to as KING WILLIAM) for indemnity and/or contribution alleging that KING WILLIAM was negligent in failing to warn QUALITY of Mrs. Davis' particular condition. Thereafter, appellants filed a first amended original petition wherein they brought in KING WILLIAM as a defendant alleging negligence on its part in engaging the services of QUALITY "without determining whether the company, in fact, was competent and capable of rendering exterminating services in such a manner that would not be hazardous to the tenants" and "in failing to properly supervise the activities of Defendant Quality Pest Control."

KING WILLIAM filed special exceptions to appellants' first amended original petition. In the special exceptions, KING WILLIAM asserted that appellants' petition did not set forth sufficient facts to establish what KING WILLIAM should or should not have done to determine QUALITY's competency and did not specifically state any act or omission on KING WILLIAM's part sufficient to constitute a duty to supervise the activities of QUALITY or a breach of that duty. KING WILLIAM also objected to appellants' allegation because "[t]he relationship in this case is undisputedly a relationship between the independent contractor and the King William Apartments ...."

The record does not reflect any action by the trial court on these special exceptions. However, appellants thereafter filed a second amended original petition wherein they alleged as follows: "Further, Defendant King William Apartments was negligent in that it gave its independent contractor, Cross-Defendant Quality Pest Control, no instructions or directions as to how the work should be done so as to protect Francis Davis from the danger of falling ...." (emphasis theirs)

Appellants' second amended original petition was followed by a third amended original petition which contained substantially the same allegations as the second but added several new defendants. Included were five named individuals who were alleged to be a collective entity or entities doing business as King William Apartments (hereafter Owners) and M-D-M Properties, Inc., an entity which was described as KING WILLIAM's agent. In this petition, appellants alleged for the first time that the named defendants "were negligent in that the Cross-Defendant, Quality Pest Control, an independent contractor acting for King William Apartments ..., created a dangerous condition for which all defendants are liable." They alleged further that all the defendants were negligent in failing to warn Mrs. Davis that a hazardous condition existed in her apartment and in failing to inspect the apartment following the extermination.

Subsequent to the filing by appellants of the first amended original petition, appellants settled with QUALITY. It is an appellee here because of the still pending indemnity and contribution action. Other appellees are KING WILLIAM, Owners, and M-D-M Properties, Inc. No brief has been filed on behalf of M-D-M Properties, Inc. or QUALITY. KING WILLIAM and Owners have jointly filed a brief. We will hereinafter refer to them as appellees.

Appellees filed special exceptions to the third amended original petition. There they alleged that by appellants' allegations that QUALITY was an independent contractor, "the Petition contains facts which affirmatively negate the existence of a cause of action." Appellees cited Goolsby v. Kenney, 545 S.W.2d 591 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.), for the proposition that a person who employs an independent contractor to secure the performance of certain work lawful in itself and not inherently injurious to others, is not responsible for injuries caused by the negligent acts of an independent contractor or his servants and employees. Appellees further specially excepted by stating that the petition failed to comport with the spirit and nature of the Texas Rules of Civil Procedure as appellees had not received fair notice of the exact nature of appellants' allegations.

The trial court sustained in part and denied in part appellees' special exceptions to the third amended original petition. Those sustained complained of appellants' allegations of vicarious liability, failure to give QUALITY instructions as to how the work should be done and to warn Mrs. Davis that a hazardous condition existed, failure to alert QUALITY of Mrs. Davis' special condition, and failure to inspect Mrs. Davis' apartment following extermination of the pests. The trial court did not sustain the special exception complaining of the allegation that all defendants were negligent in failing to determine whether QUALITY was a competent and capable exterminating service. Appellants, complying with the trial court's order to replead the petition within six weeks, thereafter filed their fourth amended original petition.

Since the wording of the fourth amended original petition is significant in the trial court's decision to sustain special exceptions thereto, we will set out parts of that petition verbatim.

Paragraph IV of appellant's fourth amended original petition states in part as follows:

... [All defendants], by and through its/their agents, servants, and/or employees, were negligent in that the Cross-Defendant QUALITY PEST CONTROL, as owners' representative acting for KING WILLIAM APARTMENTS and all Defendants, negligently created a dangerous condition, which was a proximate cause of the injuries suffered by the Plaintiffs, for which all Defendants are vicariously liable.

Paragraph V of that same petition states in part as follows:

... [All defendants], by and through their agents, servants, and/or employees, were negligent, including but not limited to, the following particular allegations;

(1) In that they failed to determine whether or not the Cross-Defendant, QUALITY PEST CONTROL, was in fact a competent and capable exterminating service, which would render its

services in a safe, workmanlike and skillful manner.

(2) In failing to properly supervise the activity of owners' representative in or about the Plaintiffs' apartment.

(3) In failing to specifically alert Cross-Defendant QUALITY PEST CONTROL, its supervisor and/or employees of the condition of Mrs. Davis and the increased risk of injury to her because of her condition should a residue of oily fluid be left in the apartment on which she could slip.

(4) In failing to inspect Mrs. Davis' apartment following the extermination of the pests in her apartment to discover the dangerous condition.

(5) In failing to instruct owners' representative, QUALITY PEST CONTROL, not to spray excess fluid in the Plaintiffs' apartment, although the Defendants had actual knowledge of this practice of spraying excess fluid, which dripped to the floor.

Also paragraph VII of appellants' fourth amended original petition states in part as follows:

Alternatively, and without waiving the foregoing, Plaintiffs seek damages for the wrongful refusal to abide by the express terms of Exhibit A (attached hereto), wherein the Defendants/owners agree to be liable for the negligent acts of owners' representative or of owner, his agents, servants, and/or employees.

Specifically, Plaintiffs assert their right under Paragraph 12, sentence 2 of said Exhibit A, wherein it states:

'Owner shall not be liable for personal injury or damage or loss of resident's personal property (furniture, jewelry, clothing, etc.) from theft, vandalism, fire, water, rain, hail, smoke, explosions, sonic booms, acts of God, or other causes whatsoever, unless the same is due to negligence of owner or owner's representative.' [emphasis notation within quote in original]

Plaintiffs have specifically pled acts of negligence of owner and owner's representative in the preceding paragraphs IV and V of this Petition, and hereby incorporate said paragraphs IV and V in this paragraph for all purposes.

In their special exceptions to the fourth amended original petition, appellees alleged substantially the same defects as were previously asserted. Further, appellees specially excepted to the use of the word "representative" in paragraphs IV, V and VII. They reasoned that because appellants themselves used the term "independent contractor" in their second and third amended original petitions, it was undisputed that the relationship between KING WILLIAM and QUALITY was one of employer and independent contractor and not one of principal and agent. This argument was also advanced regarding the negligence allegation pursuant to Paragraph 12 of the lease. Appellees asserted that the petition contained facts which affirmatively...