Goolsby v. Kenney

• Decision Date: 30 December 1976
• Docket Number: No. 977,977
• Citation: 545 S.W.2d 591
• Parties: Willard GOOLSBY, Appellant, v. James W. KENNEY et ux., Appellees.
• Court: Texas Court of Appeals

Page 591

545 S.W.2d 591

Willard GOOLSBY, Appellant, v. James W. KENNEY et ux., Appellees.

No. 977.

Court of Civil Appeals of Texas,

Tyler.

Dec. 30, 1976.

Rehearing Denied Jan. 31, 1977.

W. Richard Bernays, Touchstone, Bernays & Johnston, Dallas, for appellant.

Henry Stollenwerck, Dallas, for appellees.

McKAY, Justice.

This is a negligence case brought by Appellees, James W. Kenney and wife, and Intervenor, Trinity Universal Insurance Company, for property damages to the Kenney's house and personalty caused by fire which spread from a home under construction, which was being built by appellant Willard Goolsby, a home builder. Goolsby had subcontracted all of the plumbing work to an independent plumbing subcontractor, McLemore, who was a codefendant. Trial was had before a jury; and based upon the verdict, the trial court rendered judgment against Goolsby and McLemore, jointly and severally, for the sum of $77,575.03. Goolsby brings this appeal from that judgment, but McLemore has not appealed.

At the close of the evidence the trial court overruled Goolsby's motion for instructed verdict. The jury found (issue 20) that McLemore was an independent contractor, but also found (issues 13--18) that McLemore and his employees were guilty of various acts of negligence in the use of the plumber's torch which proximately caused the fire and damage to appellees. The jury also found (issue 19) that the plumbing work contracted to be done by McLemore 'was inherently dangerous work', and the jury also found on issues ¹ submitted over Goolsby's objections, that Goolsby failed to take certain precautions while McLemore's employees used the plumber's torch, and that such omissions constituted negligence proximately causing appellees' damage. Goolsby filed a motion for judgment notwithstanding the verdict which motion was overruled by the trial court.

Goolsby, appellant, is a home builder and on the occasion in question was in the process of building a home for the market. He had for many years employed Dennis McLemore, who does business as McLemore Plumbing Company, to do all plumbing work on the new houses under construction. The construction site in question was next to the appellees' home. At the time of the fire the Goolsby house had been framed and shingled. Fiberglass insulation was nailed to the outside walls of the house, being supported by paper backing which faced the interior of the house.

On the day of the fire neithr Goolsby nor McLemore was present. McLemore had sent two of his employees, Shelton and Sterling, to the house to set the bathtubs. The men found a leak, resulting from a nail hole apparently left by the carpenters in a bathroom pipe. The pipe ran vertically, coming up through the floor and through a horizontal 2 4 board and extended up between two vertical 2 4 studs. The distance between the pipe and the paperbacked insulation was approximately 1 1/2 feet.

Shelton undertook to repair the leak. He used a saw to cut out the section of the pipe containing a nail hole and then, by using a Smith torch, a standard plumber's torch, Shelton heated the pipe, applied a flux can acid paste to the pipe so that it would draw solder into the joints and soldered a coupling or collar to the existing pipe so as to seal the pipe on both sides of the cut-out portion. This is called 'sweating' the joint. In performing this operation, the flame of the torch should have been parallel to the outside wall, not directed at the insulation, and the flame should have been in direct contact with the coupling at all times. The soldering torch produces a flame approximately three inches long and a heat of approximately 2300 degrees Fahrenheit.

Shelton had been working on the pipe about a minute when there was a flash in the outside wall. When he looked up the fire covered the wall from top to bottom. Efforts of the two men to extinguish the fire with a garden hose proved futile. The flames spread to the roof and then to the Kenney house next door.

Although appellant brings 18 points of error, only points four and five are needed for the disposition of this case. Point four complains of the submission of issues pertaining to Goolsby's 'alleged failure to take precautions during the use of the plumber's torch on the occasion in question, and related issues of negligence and proximate cause, for the reason that as a matter of law, there was no duty upon the part of the employer of a competent independent contractor to take such precautions.' The fifth point complains of the trial court's failure to 'disregard the answer of the jury . . . to the effect that the work contracted to be done by McLEMORE . . . was inherently dangerous work.'

The right to recover for injuries from negligence is based upon violation of a duty, and where there is no duty there can be no negligence. Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913). Thus, issues on negligence should not be submitted if the defendant owes no duty to the plaintiff. In considering the inherently dangerous work question, we must be guided by the rule that the court may disregard any jury finding which has no support in the evidence, Rule 301, T.R.C.P., and such finding must be disregarded if the evidence conclusively establishes the existence of a vital fact contrary to the jury finding. Calvert, 'No evidence' and 'Insufficient Evidence' Points of Error, 38 Tex.L.Rev. 361 (1960). Two related questions present themselves: with a finding that McLemore was an independent contractor was Goolsby liable for the acts of McLemore; and, secondly, was the use of the plumber's torch inherently dangerous work?

It is the well-settled law of this state that one who contracts for work to be done by an independent contractor is not liable for the negligence of the latter. Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S.W. 282 (1904); Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944). This rule is subject to an important exception where the work is inherently dangerous, however skillfully done. Cameron Mill & Elevator Co. v. Anderson, supra. The logic behind the exception was explained in the Cameron case by Chief Justice Gaines, quoting Judge Dillon, 2 Dillon's Mun.Corp., par. 1029, where he said, 'the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.' 81 S.W. at 282. It has been held that an instrumentality is inherently dangerous only if it is 'dangerous in its normal or non-defective state, like explosives.' Roosth & Genecov Production Co . v. White, 152 Tex. 619, 262 S.W.2d 99, 101 (1953). The work to be inherently dangerous must result in probable injury to third persons or the public. Stephenville, N. & S.T. Ry. Co. v. Couch, 56 Tex.Civ .App. 336, 121 S.W. 189 (1909, no writ). No recovery may be allowed for an injury resulting from an act or fault purely collateral to the work and which arises entirely from the wrongful act of the independent contractor or his employees. Loyd v. Herrington, supra, p. 1005; Brownsville Navigation Dist. v. Valley Ice & Fuel Co., 313 S.W.2d 104 (Tex.Civ.App.-San Antonio 1958, no writ). The burden is on the plaintiff to show an exception to the general rule exempting the owner or employer from liability. Wilson v. Crutcher, 176 S.W. 625, 628 (Tex.Civ.App.-Texarkana 1915, writ ref'd); Harris v. Farmers' & Merchants' State Bank, 239 S.W. 1027, 1029 (Tex.Civ.App.-El Paso 1922, no writ).

The case which most directly resembles the present case is the Brownsville Navigation case cited supra. In that case the defendant had hired an independent contractor to remove an ice machine from a pier, which machine the defendant had bought from the tenant of the pier. While using an acetylene torch, an oxygen-fed torch much hotter than the one in the present case, the independent contractor started a fire by sparks which dropped from the torch to some unknown material below the pier, and spread to the plaintiff's property. In holding the employer not liable for the acts of the independent contractor, Judge Pope said:

'The contract did not directly require it (the torch), and the torch was not necessarily incident to the removal of the equipment from the Pier. We doubt that the use of the acetylene torch was an inherently dangerous operation, since it was the Negligent manner of its use which resulted in the fire.' (Emphasis added) 313 S.W.2d at 106.

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