George W. Armstrong Co. v. Adair

• Decision Date: 07 February 1923
• Docket Number: (No. 366-3317.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GEORGE W. ARMSTRONG CO., Inc., v. ADAIR.
• Court: Texas Supreme Court

247 S.W. 848

GEORGE W. ARMSTRONG CO., Inc., v. ADAIR.

(No. 366-3317.)^*

Commission of Appeals of Texas. Section A.

February 7, 1923.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by Roy Adair, by his next friend, against the George W. Armstrong Company, Inc. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which reversed the judgment, and pending a motion for rehearing certified questions to the Commission of Appeals. Questions answered.

E. H. Ratcliff and McLean, Scott & McLean, all of Fort Worth, for plaintiff.

Ocie Speer and Dee Estis, both of Fort Worth, and Homer L. Boughmann, of Leeroy, for defendant.

GALLAGHER P. J.

This case is before us on certified questions submitted by the honorable Court of Civil Appeals for the Second District. Roy Adair, a minor, suing by his mother as next friend, was plaintiff and George W. Armstrong Company, Inc., was defendant in the trial court, and they will be so designated here.

The honorable Court of Civil Appeals in its certificate makes the following statement of the substance of plaintiff's pleadings:

"The defendant was engaged in the business already mentioned in a large building in which was installed machinery and appliances of divers kinds used for heating and rolling iron and steel into bolts and other products. There was a trough about 6 to 8 inches wide, about 6 to 9 inches deep, and 60 to 90 feet long, open at both ends and at the top. Into this trough steel and iron rods were driven at a high rate of speed, and while very hot, after they emerged from a series of rollers. The rods would then be lifted from the trough and placed into what is termed the `hot bed,' tongs being used by the workmen for that purpose. By reason of the fact that the trough was open at the top, and by reason of certain obstructions in it, the rods, in passing rapidly down it, would occasionally `jump' out, thus rendering the place near the trough very dangerous to any one present. It was fascinating and attractive to visitors to the plant, especially minors, to watch the operations of the machinery and the iron and steel rods as they passed through the different processes of manufacture, and the defendant was in the habit of inviting the public to visit the plant to witness said operations. On June 9, 1917, Roy Adair, by express invitation from Ed Capps, defendant's foreman, was a visitor in the building and while standing near the trough mentioned above, and while steel rods, at a high heat, were being run into it, one of the rods `jumped' out and ran through the calf of his leg and severely burned other parts of his body also. On numerous occasions prior to his injury Adair had visited the plant in search of employment from the defendant, and its general foreman, Ed Capps, had on each occasion told him that he could probably receive such employment in the future, and on each occasion invited and requested him to return again for a decision of the foreman upon that question, and in obedience to that invitation and request Adair was present in the building at the time he was injured. Adair was ignorant of the dangers to which he was exposed, and the foreman knew of such lack of knowledge on his part, and failed to warn him thereof, and was guilty of negligence in thus exposing him to those dangers, which negligence was the proximate cause of his injuries. According to further allegations in plaintiff's petition, defendant was also guilty of negligence which was the proximate cause of such injuries in maintaining the trough constructed in such a manner as to allow the rods to `jump' therefrom while being run into it. Damages for the injuries in the sum of $15,000 were claimed."

The certificate further shows that the defendant pleaded general denial and other special pleas, including contributory negligence, and that, after plaintiff had testified in the case with reference to interviews with defendant's foreman, and how he (plaintiff) happened to be at said plant, and the particular kind of work he was doing at the time he was injured, defendant filed the following trial amendment:

"Now comes the defendant in the above numbered and entitled cause, leave of the court first having been had and granted, files this its trial amendment, and in addition to all other matters pleaded by this defendant in its other pleadings heretofore filed shows to the court that at the time of the injury of Roy Adair, as alleged by plaintiff, and as shown by the proof, this defendant was a subscriber to what is known as the Texas Employers' Insurance Association, and that at the time of said injuries this defendant had obtained from Southern Surety Company a policy indemnifying this defendant against any loss by reason of any liability imposed upon it by law for damages on account of any injuries or death received by any of the employees of this defendant. And that under the testimony of Roy Adair it appears therefrom that at the time the said Roy Adair was injured he was an employee of this defendant, and suffered such injuries in the course of his employment, and that under the law (section 3 of chapter 179, General Laws of the Thirty-Third Legislature) this plaintiff nor Roy Adair cannot recover against this defendant, but their cause of action, if any, lies against the Texas Employers' Insurance Association or the Southern Surety Company or some other association other than this defendant for compensation. That a copy of the insurance policy held by this defendant at the time of said injury is hereto attached and made a part hereof."

The certificate sets out the special issues submitted and the answers of the jury thereto in full. The substance of said findings of the jury is as follows:

"That plaintiff was upon the premises of defendant at the time of his injury upon the invitation and with the permission of the foreman; that the place was dangerous for persons of his age, intelligence, and experience, and defendant knew, or ought in the exercise of ordinary care to have known, such fact; that defendant failed to warn him of the danger, and that such failure was negligence; that defendant's foreman in the exercise of ordinary care ought to have anticipated that plaintiff might receive injury by reason of his failure to warn him, and that such negligent failure was the proximate cause of plaintiff's injuries."

"That plaintiff applied to Capps, defendant's foreman, for work prior to the time he was injured; that Capps told him to return to see him, that he would put him to work as soon as he could; that plaintiff returned to the plant and had a conversation with Capps on the day he was injured, and before his injuries; that Capps told him `I will put you to work Monday; go and familiarize yourself with the work so you will not be a green hand;' that plaintiff was working and familiarizing himself with the work at the time he was injured; that Capps knew the character of the work he was doing at the time he was injured; that he was acting upon the direction given him by Capps; that no one warned him of the danger incident to the work he was doing and that such danger was not patent, open, and obvious; that it was not customary to pay for such work under such circumstances, and that plaintiff would not have received anything for such work; that he did not fail to exercise ordinary care for his own safety; and that plaintiff was damaged in the sum of $15,000 as a consequence of his injuries."

The certificate further shows that the trial court rendered judgment on said findings of the jury in favor of plaintiff against the defendant for the sum of $15,000. The defendant appealed. The Court of Civil Appeals reversed the judgment of the trial court on the ground that the verdict of the jury imported a finding in legal effect that at the time of his injury plaintiff was an employee of the defendant within the meaning of the Workmen's Compensation Act, and rendered judgment in favor of the defendant. The certificate further shows that neither party challenged any of said findings of fact as unsupported by the evidence; the only controversy being whether or not said findings sustained the plea urged by defendant that it was exempt from liability by virtue of the provisions of the Workmen's Compensation Act.

Pending a motion for rehearing, the honorable Court of Civil Appeals certified, upon the above statement, the...