Eubanks v. Schwalbe

• Citation: 55 S.W.2d 906
• Decision Date: 14 December 1932
• Docket Number: No. 3921.,3921.
• Parties: EUBANKS et al. v. SCHWALBE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

Page 906

55 S.W.2d 906

EUBANKS et al. v. SCHWALBE et al.^*

No. 3921.

Court of Civil Appeals of Texas. Amarillo.

December 14, 1932.

Rehearing Denied January 11, 1933.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Claudia Eubanks and others against H. L. Schwalbe and others. From judgments sustaining demurrers to the causes of action alleged against each of the defendants, plaintiffs appeal.

Affirmed as to defendant Panhandle & Santa Fé Railway Company; reversed and remanded as to defendants H. L. Schwalbe and the United States Fidelity & Guaranty Company.

Levens, McWhorter & Howard, Lockhart & Brown, and Tom Garrard, all of Lubbock, for appellants.

Bean & Klett, of Lubbock, and Touchstone, Wight, Gormley & Price, of Dallas, for appellee H. L. Schwalbe.

Bledsoe, Crenshaw & Dupree, of Lubbock, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellee United States Fidelity & Guaranty Co.

Terry, Cavin & Mills, of Galveston, Madden, Adkins, Pipkin & Keffer, of Amarillo, and Wilson, Randal & Kilpatrick, of Lubbock, for appellee Panhandle & Santa Fé Ry. Co.

JACKSON, J.

This suit was instituted by the appellants the surviving wife, minor daughter, and parents of Fletcher S. Eubanks, deceased, for whose injuries and death they sought to recover damages against H. L. Schwalbe, doing business under the assumed name of Interstate Contracting Company, and the two corporations, the United States Fidelity & Guaranty Company and the Panhandle & Santa Fé Railway Co.

The court sustained a general demurrer to the cause of action alleged against each of the defendants, the case was dismissed and such action of the court is here for review.

There is no question about the allegations of the relation of the appellants to the deceased, their dependency and damages, if their petition alleges a cause of action against the defendants for the injuries and death of the deceased.

The appellants alleged:

That on or about March 16, 1931, H. L. Schwalbe contracted with the state of Texas to pave and otherwise improve that part of state highway No. 9 extending north from the city of Lubbock to the line of Hale and Lubbock counties, a distance of approximately twenty miles. That such part of said highway was east of the railroad of the Panhandle & Santa Fé Railway Company, and, at a point about six miles from Lubbock, was originally located adjacent to the east line of the right of way of said railroad and as so located continued through the town of Monroe, which is about eleven miles from Lubbock.

That the plan for the improvements required the route of the old highway to be changed so as to pass under the railroad about six miles north of Lubbock and continue on the west side thereof through the town of Monroe. That the state highway department, by agreement with the railway authorities, made an excavation under the railroad property, which, when completed, was to constitute an underpass through which the improved highway would pass under the railroad. That such excavation was about fourteen feet deep, with perpendicular banks, and about thirty feet in width, and extended directly across the old highway, and there was no barrier across the road and no warning light or signal to give notice of danger. That some one had constructed a detour which left the old highway about one hundred feet north of the excavation and passed to the east and re-entered said highway south of the excavation, but there was no barrier or warning to apprise a traveler at night that such detour existed or that there was an excavation across the road, but, on the contrary, those working upon the excavation had been driving their automobiles over the old road from the intersection of the detour to the excavation, giving the road the appearance of a traveled highway, and constituting an invitation to travelers to proceed thereon.

That on April 9, 1931, about 11 o'clock at night, Fletcher S. Eubanks, while traveling along the old highway toward the town of Lubbock, as he had a right to do, drove his automobile into said excavation, receiving injuries which resulted in his death. That, prior to the time of the accident resulting in the death of Fletcher S. Eubanks, the defendant H. L. Schwalbe, under his contract with the state highway department, took active charge and control of the right of way for the highway between the town of Lubbock and the line of Lubbock and Hale counties, which included the excavation under the tracks of the railway company and the approaches thereto where the accident occurred, and began preparing the right of way for the paving, including the laying of water lines and other necessary work on the premises. That prior to and after the time H. L. Schwalbe assumed active charge and control of the right of way, including the excavation, the highway between Lubbock and Monroe was not closed, but was kept open for public travel, and large numbers of vehicles were operated over such road both day and night, all of which was well known to H. L. Schwalbe, his agents, and employees, or by the exercise of ordinary care and prudence would have been known to him and his employees. That, when H. L. Schwalbe assumed active control of the road, including the excavation in question, it became his duty to erect and maintain on the highway, and in front of said excavations, suitable and sufficient barriers, lights, and warning signs to apprise the deceased and the traveling public of the excavation and the danger thereof. That H. L. Schwalbe, his agents and employees, knowing of such dangerous situation, negligently and carelessly failed to erect or maintain any light, barrier, or warning signs whatever across such highway, and negligently permitted the old highway to remain open at said excavation and such negligence and carelessness was the proximate cause of the injury and death of Fletcher S. Eubanks.

That, in addition to the duties above alleged, H. L. Schwalbe, by his contract with the state, promised and agreed to erect and maintain sufficient barriers, lights, warnings and signs in front of such excavations to warn the traveling public of the danger thereof.

These allegations, in our opinion, are sufficient to authorize appellants to maintain their suit against H. L. Schwalbe under the provisions of article 4671, R. C. S., which states that an action for actual damages on account of the injuries causing the death of any person may be brought "when an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of another person."

Article 5525, R. C. S., as amended by Acts 1927, c. 239, § 1 (Vernon's Ann. Civ. St. art. 5525), provides, in effect, that, in case of death, a cause of action shall survive to and in favor of the heirs and legal representatives of the injured party and against the person or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such person in whose favor the cause of action arose were still living.

"There are wrongs which will maintain an action on the case, known to the common-law pleading, committed in the nonobservance of duties which are but the implication of contract obligation. Wherever there is carelessness, want of reasonable skill, or the violation or disregard of duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action in tort lies in favor of the party injured. If the transaction had its origin in a contract which places the parties in such relation as that in performing or attempting to perform the service promised the wrong is committed, then the breach of the contract is not the gravamen of the action. There may be no technical breach of the letter of the contract; the contract in such case is a mere inducement and should be so pleaded. It induces, causes, creates the conditions or state of things which furnishes the occasion for the wrong." Pecos & N. T. Ry. Co. v. Amarillo Street Railway Co. (Tex. Civ. App.) 171 S. W. 1103, 1105.

The Supreme Court of Alabama, in Thaggard v. Vafes, 218 Ala. 609, 119 So. 647, 649, says: "While the authorities are agreed that a mere breach of contract is not a wrongful or negligent act, within the meaning of the statutes giving a right of action for wrongfully causing death, yet they are also agreed that the negligent or tortious breach of a duty to the person whose death is caused thereby is within the statute, though such duty arises out of contract. Peck v. Henderson, 218 Ala. 233, 118 So. 262; 17 C. J. 1204, § 54; Blackburn's Adm'r v. Curd, 106 S. W. 1186, 32 Ky. Law Rep. 789; Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S. W. 562; 38 Cyc. 426; Dice's Adm'r v. Zweigart's Adm'r, 161 Ky. 646, 171 S. W. 195, L. R. A. 1916F,...