Harwell & Harwell, Inc. v. Rodriguez

• Decision Date: 19 July 1972
• Docket Number: No. 15042,15042
• Citation: 487 S.W.2d 388
• Court: Texas Court of Appeals
• Parties: HARWELL & HARWELL, INC., Appellant, v. Ruben Roland RODRIGUEZ et al., Appellees.

Page 388

487 S.W.2d 388

HARWELL & HARWELL, INC., Appellant, v. Ruben Roland RODRIGUEZ et al., Appellees.

No. 15042.

Court of Civil Appeals of Texas,

San Antonio.

July 19, 1972.

Rehearing Denied Nov. 1, 1972.

Stayton, Maliney, Black, Hearne & Babb, Austin, Johnson, Offer & Simcock, Alfred W. Offer, San Antonio, for appellant.

Southers, Mendelsohn, Goldberg & Lyons, Inc., Frank R. Southers, House, Mercer, House & Brock, Chester H. Brown, Jr., San Antonio, for appellees.

KLINGEMAN, Justice.

This suit was brought by Ruben Roland Rodriguez, against Norman Harwell Associates, Inc. and Harwell & Harwell, Inc., for damages allegedly resulting from injuries sustained by plaintiff as a result of a fall from a ladder on a construction job of which Norman Harwell Associates, Inc., was the general contractor, and Harwell & Harwell, Inc., was a subcontractor. At the time of the accident, plaintiff was employed by Stanley Smith Detectives, Inc., as a guard-watchman on the construction site. National Standard Insurance Company intervened and pleaded certain subrogation rights as to any recovery by plaintiff against defendants. Trial was before a jury and, based upon its verdict, the trial court entered judgment for plaintiff and against defendant, Harwell & Harwell, Inc., in the total amount of $200,000.00, out of which sum plaintiff was ordered to pay intervenor, National Standard Insurance Co., $21,980.54, and to pay intervenor's attorney's fees in the sum of $1,000.00. A take-nothing judgment was entered as to defendant, Norman Harwell Associates, Inc. Thereafter plaintiff filed a remittitur of $10,800.00. Harwell & Harwell, Inc., only appeals from such judgment.

Appellant asserts twenty-two points of error. For the purpose of this opinion, said points of error will be divided and discussed under the following general areas: (a) points of error pertaining to 'no duty'; (b) points of error pertaining to the jury's findings respecting the ladder involved; (c) points of error pertaining to the admission of certain alleged opinion evidence; (d) points of error pertaining to erroneous special issue submission; (e) error of the court in refusing to admit Defendants' Exhibit No. 5 into evidence; (f) improper jury argument; (g) error of the court in admitting into evidence certain portions of plaintiff's oral deposition; (h) jury misconduct and alleged improper conduct of plaintiff's counsel in connection therewith; and (i) error of the court in admitting into evidence life expectancy tables.

No Duty

By four points of error appellant asserts that the trial court erred in entering judgment for plaintiff because there are no pleadings and no findings that appellant owed any duty to plaintiff with respect to the ladder in question, and because there is no evidence or insufficient evidence to support a finding that appellant owed any duty to plaintiff with respect to such ladder.

Appellant asserts vigorously that there was no evidence of probative value that plaintiff occupied the status of an invitee but that plaintiff was injured while occupying the status of a licensee; and that the only duty appellant owed plaintiff was the duty not to injure him willfully, wantonly, or through gross negligence. Under these points of error the principal question for determination is the legal status of plaintiff--was he an invitee or was he a licensee.

Appellant relies in part on Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950), where the Court held that a general contractor on a construction job who is in control of the premises is burdened with the duty to use due care to provide a safe place for workmen on the premises, including the employees of other contractors. Appellant therefore asserts that a subcontractor is not responsible for the safety of the premises. Appellant relies chiefly on Olivier v. Snowden, 426 S.W.2d 545 (Tex.1968), where the Supreme Court in a five to four decision held as a matter of law that an employee of a general contractor who was injured while using equipment of a subcontractor was a licensee and not an invitee of such subcontractor in the use of such equipment. The Court stated that in the absence of a showing that the use of such equipment by others worked in some way to the benefit of the owner, that such employee was a licensee and not an invitee, and that Snowden's (the injured employee) use was for the sole benefit of the general contractor.

The Court said that the true test to be applied was whether the owner of a scaffold or other equipment receives benefits or advantages from the permitted use by another of that particular piece of equipment. The Court quoted from Munson v. Vane-Stecker Co., 347 Mich. 377, 79 N.W.2d 855, involving a similar question, to the effect: 'The test to be applied . . . in determining whether a plaintiff was a licensee or an invitee is whether there existed mutual interests and mutual advantages to the parties concerned from the use of the equipment belonging to one party and left for use by another in the carrying on of a project in which both were interested.'

In Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105, 1107 (1938), the Court said: "In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee." The Supreme Court of the United States in the case of Bennett v. Louisville & Nashville Railroad Co., 102 U.S. 577, 584--585, 26 L.Ed. 235 (1881), said: "The principal . . . appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."

Plaintiff was employed by Stanley Smith Detectives, Inc. as a guard-watchman. Stanley Smith was engaged by the general contractor, Norman Harwell & Associates, Inc., to supply a security service for an apartment complex being constructed at 750 W. Mayfield in San Antonio, Texas. The contract between the general contractor and Smith was an oral one, but there is testimony that Smith had agreed to provide general security for the entire site, to prevent unauthorized persons from entering the premises, and to prevent loss from theft, arson and vandalism on the site. There was testimony that there was quite a problem with thieves on construction sites in San Antonio, and just about anything on a job site is subject to be stolen including tools, appliances and material. Although Norman Harwell Associates, Inc. was the general contractor, there was various subcontracting, including earth work, plumbing, electrical, concrete work, roofing, sheet metal work and including Harwell & Harwell, Inc., which was the subcontractor for the rough carpentry work.

On the night of the accident, a few minutes after midnight, a car drove up to the job site, turned off its lights and plaintiff saw a figure run into the area of the job site. Plaintiff gave chase to the prowler and while pursuing such prowler, he attempted to climb the ladder in question when a rung broke, causing him to fall to the ground and sustain severe injuries. Such ladder was constructed by nailing 1 4 's horizontally as rungs or steps to vertical studs on the apartment shell.

Plaintiff testified that in his duties as guard-watchman he patrolled the entire construction site area, checking on everything such as tool boxes, equipment left out, etc.; and that he was ordered to write down the location where he found any tools and to bring them in. He testified that one of the carpentry supervisors told him that the place had been burglarized before; and that he was cautioned by such supervisor to be on the lookout and was warned that there were some tools missing and to be on his toes.

There was testimony that the ladder was built for anybody working on the premises, and the carpentry foreman testified that any ladder built on the job was built not just for the carpenters but for all others requiring the use of the ladder to get on the second floor. Certainly plaintiff's purpose in climbing the ladder in question was not for his own convenience, benefit or pleasure. As a guard-watchman on the premises, plaintiff's duties were to protect the entire job site from prowlers, trespassers, children, thieves, arsonists and vandals. At the time of the occurrence of the accident, he was in pursuit of a suspected prowler.

The question here to be decided is whether or not plaintiff's use of appellant's ladder in attempting to apprehend the prowler on the job site was to the mutual advantage, interest and benefit of appellant. It would appear from the record that the job in which plaintiff was engaged as a general security watchman to protect the entire site from prowlers, trespassers, arsonists and vandals was mutually beneficial to all concerned and in the mutual interest of all the contractors on the job. We cannot say that appellant has received no benefits or advantages from the permitted use of the ladder.

All of appellant's 'no duty' points of error are overruled.

Points of Error Pertaining to The Ladder Involved

By four points of error appellant complains that there is no evidence and/or insufficient evidence to support the jury's finding that appellant was negligent in permitting the rung in question to be used in the ladder with only one nail in each end; ¹ and that there is no evidence and/or insufficient evidence to support the jury's findings that appellant was negligent in permitting the rung with diagonal grain to be in the ladder. ²

In this regard it is appellant's contention that there is no evidence or insufficient evidence that appellant built the ladder in question or that appellant had any duty to remove any ladder built by somebody else.

The ladder in question was made up of 1 4 boards that were nailed diagonally across upright studs, and was constructed by nailing strips of lumber to studs of one of the...