Fisher Const. Co. v. Riggs

• Decision Date: 08 January 1959
• Docket Number: No. 13334,13334
• Citation: 320 S.W.2d 200
• Parties: FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.
• Court: Texas Court of Appeals

Page 200

320 S.W.2d 200

FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.

No. 13334.

Court of Civil Appeals of Texas, Houston.

Jan. 8, 1959.

Rehearing Denied Jan. 29, 1959.

Dyess, Dyess & Prewett, Arthur D. Dyess, Jr., Houston, for appellant B. B. Bettell & Son, Inc.

McGregor, Sewell & Junell, William L. Bowers, Jr., Houston, for appellant Fisher Const. Co.

Stanley F. Swenson, Houston, for appellee Riggs.

Carey Williams, Houston, for intervenor I. C. T. Ins. Co.

WERLEIN, Justice.

Appellee, Robert E. Riggs, brought this suit for personal injuries sustained by him on August 15, 1955, when he hopped or jumped through a plate-glass window in an unfinished store space, a part of the Palm Center Shopping Center in the City of Houston, then in the process of construction. Appellant Fisher Construction Company, hereinafter referred to as Fisher, was the general contractor for the shopping center project consisting of some 42 stores covering approximately 6 acres of buildings. Appellant, B. B. Bettell and Son, Inc., hereinafter referred to as Bettell, was the painting contractor on the project, and appellee was a painter in the employ of Bettell. I. C. T. Insurance Company, carrier of workmen's compensation insurance on employees of Bettell, intervened. Fisher filed its third-party action against Bettell, basing such third-party action on an indemnity agreement entered into between them.

The court entered judgment on the verdict of the jury in favor of appellee in the sum of $20,010, out of which $4,099.45 was decreed to the intervenor. It was further ordered and decreed that Fisher recover over against Bettell judgment for the sum of $850 attorney's fees and expenses incurred, plus such sums as Fisher may ultimately be required to pay appellee.

Bettell's brief asserting 11 Points of error is adopted by Fisher with the exception of Points 10 and 11 relating to the indemnity agreement in answer to which Fisher has filed a separate brief.

We shall first consider appellee's motion to dismiss this appeal or to require new cost and supersedeas bonds with two sureties. The supersedeas bond was executed by Bettell as principal and Fidelity & Deposit Company of Maryland as surety. The cost bond was executed by Fisher as principal and the Employers' Liability Assurance Corporation, Ltd., as surety.

Articles 7.01 and 7.02 of the Insurance Code of Texas, permitting private corporations to act as surety and requiring only one corporate surety, were repealed by act of the 55th Legislature, effective ninety days after May 23, 1957. In repealing such articles, the Legislature failed to enact any law in lieu thereof. Hence there is no statutory provision authorizing surety companies to execute bonds in judicial proceedings other than in probate matters and certain proceedings not here pertinent, nor is there any statutory requirement that an appeal or supersedeas bond be executed by two sureties.

Appellants assert that appellee's motion to dismiss was not timely filed, under Rule 404, Texas Rules of Civil Procedure, since it was not filed within thirty days after filing of the transcript in this Court. We are of the opinion that appellee has waived the right to object to the sufficiency of the appeal bond, but agree with the decision in Berry v. Curtis, 154 Tex.Civ.R. 579, 227 S.W.2d 396, no writ history, holding that Rule 404 does not apply to a supersedeas bond in view of the language of Rules 364 to 368. In any event, Rule 365 gives this Court the authority to review such bond and to require an additional bond upon a proper showing of insufficiency. See also Rule 430, T.R.C.P.

Rule 354, T.R.C.P., covering cost bonds on appeal, provides that the appellant 'shall execute a bond to be approved by the clerk.' This rule also provides, 'Each surety on the bond shall give his postoffice address.' Appellee asserts that this last sentence implies the necessity for more than one surety on the bond. Rule 354 does not so state, nor does the sentence quoted so imply. Whether there is one surety or more, each surety must give his postoffice address.

Rule 364, T.R.C.P., relative to supersedeas bonds, provides only for 'a good and sufficient bond to be approved by the clerk,' and does not specify the number of sureties.

The Supreme Court, in Ex parte Wrather, 139 Tex. 47, 161 S.W.2d 774, 775, in which one of two personal sureties was financially able to pay the amount of the bond in the event of default, stated:

'Rule 364 merely prescribes that an appellant must give 'a good and sufficient bond to be approved by the clerk.' Therefore, if one of the bondsmen was actually sufficient surety, and the clerk was willing to accept the bond, this made a 'good and sufficient bond,' and met the requirements of the rule.'

For a discussion of the history of various statutes and requirements with respect to bonds, see Universal Automobile Ins. Co. v. Culberson, Tex.Civ.App., 51 S.W.2d 1071, 1072, no writ history, in which case the court stated:

'The sole purpose of requiring an appeal or supersedeas bond must therefore necessarily be to furnish security to the appellee in addition to the personal responsibility of the appellant. Automobile Insurance Co. v. Teague (Tex.Com.App.), 32 S.W. (2d) 824. We therefore conclude that the 'good and sufficient' supersedeas bond required by said article 2270 is one signeo by a solvent surety or sureties approved by the clerk.'

Rule 364 supersedes Article 2270.

See also Pinkston v. Victoria Bank & Trust Company, Tex.Civ.App., 210 S.W.2d 612, 613, no writ history, where the court said:

'When a district clerk is called upon to approve a bond as to its financial sufficiency he performs more than a ministerial duty, he is called upon to exercise discretion, his act becomes a quasi judicial one and his decision is conclusive in an administrative sense. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148.'

Appellee does not contend that the sureties on the bonds in question are not authorized to write bonds and do business in this State or that they are not thoroughly solvent. Each of the bonds appears to have been executed by the attorney-in-fact, respectively, of each surety. We are of the opinion that the bonds are sufficient and that it is not necessary for either bond to have been executed by more than one surety. Appellee's motion is overruled.

Appellants' first two Points are that the trial court erred in overruling appellants' motion for an instructed verdict on the ground that appellee occupied the status of licensee on the premises at the time and place he received his injury, and that under the undisputed evidence there was no breach of any legal duty on the part of appellants with respect to appellee.

Appellee had been working on the Palm Center Shopping Center as a painter for Bettell approximately 10 days before the date of his injury. His first work had been spraying, and then on Saturday preceding the Monday when he was injured he had handled rollers and brushes in some of the stores where he had been painting. On the morning of the accident appellee had painted four or five rear doors to store spaces, having been assigned to such job. He testified that in painting the back door of the store space to be occupied by Napko, he observed that it had been painted on the inside also, and he therefore started through the building to see his foreman to find out whether he should paint the inside of the back doors of the other stores. He noticed the foreman passing in front of such store space. Failing to attract his attention, he undertook to overtake him. At such time appellee was about 20 or 30 feet from the front of the store space which was 40 feet in depth. He had paint on his hands and his clothes and for that reason undertook to step through what he thought was an open space to his right of the door, rather than use the door and get paint on it. He testified that he just sort of ran or walked fast and jumped over the bulkhead which was about one foot high. He never saw the plate-glass before he hit it and did not know it had been installed. There is no evidence indicating that the accident would have been avoided had appellee approached the glass more slowly.

At such time a painter was painting inside the store space. Decorative wallpaper had already been hung but appellee testified he did not notice it. He was in a hurry to catch his foreman and get instructions as to his work. There were between 9 and 17 glaziers still working on the project and at least 12 painters. Some time prior to the accident, plate-glass had been installed in the front window of the Napko Paint Store space. When installed it was marked with large pieces of paper taped on with masking tape. Prior to the accident Fisher directed that such markings be removed and the plate-glass cleaned. Mr. Fisher, part owner of Fisher Construction Company, testified that the opening of the Center was to be on September 1, 1955, and that a great deal of work remained to be done. He further testified that construction workers frequently use the openings where plate-glass windows are to be installed as an opening to pass through, and that one of the purposes of having tape and stickers on plateglass is that it makes the glass easier to see so that it won't be broken by workmen carrying objects. At the time of the accident the plate-glass was unguarded, unmarked, highly polished and spotlessly clean.

Mr. Fisher testified that he was sure the tenants were 'pushing us to get out of their way so they could complete their work in time for the opening.' That morning the painting foreman had given his men a pep talk. He testified that if any of his men had questions concerning the work he would want them to hurry up and find out what it was they needed to have answered. Appellants' Exhibit No. 1, taken on August 26, 1955, indicates that 11 days after the accident there was still painting going...