Employers Casualty Co. v. Howard P. Foley Co.
| Decision Date | 07 January 1947 |
| Docket Number | No. 11639.,11639. |
| Citation | 158 F.2d 363 |
| Parties | EMPLOYERS CASUALTY CO. v. HOWARD P. FOLEY CO., Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Larry W. Morris and T. H. Riggs, both of Houston, Tex., for appellant.
George W. Rice, of Houston, Tex., for appellee.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
Pritchard & Company had the general contract to build a large gasolene plant at an estimated cost of $14,500,000. The Contractor sublet on a cost-plus-fixed-fee basis parts of the work to several sub-contractors. Among them was a sub-contract for the installation of the electrical work, estimated to cost about $100,000, the fixed fee being $7,400 in addition, let to Howard P. Foley Co., herein called the Sub-Contractor. The Sub-Contractor's contract contained an agreement to save and hold harmless the Contractor from all suits and claims based upon alleged injury to any person or property in the course of the performance of this contract by Sub-Contractor. On a certain morning shortly before going to work several of the Sub-Contractor's employees were in a room of the Contractor called the dressing room, in which each had been assigned a locker, and where they changed their clothes and deposited their lunches. A gas explosion occurred in the room which severely burned the men present. They each collected the statutory employee's compensation from the Sub-Contractor's insurance carrier, and then, as the Texas statute permits, sued the Contractor for damages for the injury, alleging that the Contractor negligently had left uncapped a gas pipe leading into the room, and negligently had turned natural gas, which was odorless, into the pipe, so that when one of the men lighted a cigarette the explosion happened. These suits, claiming large aggregate damages, were consolidated. The Contractor by third party proceedings brought the Sub-Contractor in on the indemnity agreement above mentioned, and Employers Casualty Co., who was an insurer of the Contractor against such claims, was also brought in. The damage suits were considered dangerous, and all parties consented to a settlement of them under an order of the court which expressly preserved the rights of the Contractor, Sub-Contractor and Casualty Company, as among themselves, unprejudiced by the settlement. The Casualty Company paid off the settlement, and claimed subrogation under its policy to the Contractor's claim for indemnity against the Sub-Contractor. A trial on agreed facts and uncontradicted testimony was had before the district judge. He found that the injured men, being employees of the Sub-Contractor, were injured while preparing to go to work and "that they were injured in the course of the performance by the Sub-Contractor of its contract with the Contractor", but that the indemnity contract ought not to be construed as binding the Sub-Contractor to indemnify the Contractor against the Contractor's own negligence, without that intention being unequivocally expressed, (citing Southern Bell Telephone Co. v. City of Meridian, 5 Cir., 74 F.2d 983), and that the burden was on the Casualty Company as subrogee to show that the Contractor's negligence did not cause the injuries; which not having been done, judgment was given for the Sub-Contractor. The Casualty Company appeals.
Appellant Casualty Company cites Texas authority that in that State an indemnity contract may be enforced though the loss arose from the indemnitee's sole negligence, if that is the contract, such an agreement not being against public policy, 23 Tex.Jur. 525; and that the circumstances and object of the indemnity contract as well as express words may show that it covers losses due to indemnitee's negligence: ...
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Brooks v. Griggs Casing Crews, Inc.
...may proceed against the principal in tort for accidental injuries under the laws of the State of Texas. Employers Casualty Co. v. Howard P. Foley Co., 5 Cir., 158 F.2d 363; Standard Oil Co. of Texas v. Swinney, 5 Cir., 201 F.2d 133; Harbour v. Graham Mfg. Co., Tex.Civ.App., 47 S.W.2d Thus, ......
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