Haynes v. Bernhard

• Decision Date: 07 January 1925
• Docket Number: (No. 7265.)
• Citation: 268 S.W. 509
• Parties: HAYNES v. BERNHARD et al.
• Court: Texas Court of Appeals

268 S.W. 509

HAYNES v. BERNHARD et al.

(No. 7265.)

Court of Civil Appeals of Texas. San Antonio.

January 7, 1925.

Rehearing Denied February 5, 1925.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by T. D. Bernhard and another against J. P. Haynes. Judgment for plaintiffs, and defendant appeals. Affirmed.

Terrell, Davis, Huff & McMillan, of San Antonio, for appellant.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellees.

SMITH, J.

As a general contractor appellant, Haynes, constructed the Frost National Bank building, a 12-story structure, in the city of San Antonio. As an incident to the construction appellant built and operated an elevator hoist, which was used in transporting materials, supplies, and implements to and from the several floors in the building. This elevator was used promiscuously by the various workmen employed on the different jobs in the construction of the building, including the plumbing, which was done by one A. E. Campbell, an independent subcontractor. Appellee Bernhard was employed by Campbell as a "plumber's helper," and as such employé of Campbell was insured by the Maryland Casualty Company, under the provisions of the Texas Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91).

About the time work was begun on the building on the morning of May 10, 1922, appellee Bernhard, who had ascended to the eleventh floor in the course of his duty as Campbell's employé, projected his head into the open elevator shaft for the purpose of calling or waving down a message to a fellow employé below, when the elevator, descending rapidly from above, struck him upon his head, seriously injuring him.

In due course appellee filed and prosecuted a claim against the Maryland Casualty Company through the Industrial Accident Board, obtaining an award amounting in all to $1,556.61, which was paid to him by the insurance company and accepted by him. Subsequently he brought this action against Haynes, alleging that he was injured through the latter's negligence, and praying for damages for such injuries. The insurance company intervened in the suit, asserting its right to subrogation, and praying for reimbursement out of any recovery Bernhard might obtain. The jury found for Bernhard in the sum of $5,500, and the court rendered judgment in his favor for that amount, less $1,556.61, theretofore paid him by the insurance company and therein awarded to that company. Haynes has appealed.

In response to special issues submitted to them the jury found that appellant's employé operating the elevator lowered the same without awaiting a signal to do so, and that this was negligence which directly caused or contributed to the accident; that the failure of the operative to give a warning signal to appellee that the elevator was about to be moved constituted negligence directly causing or contributing to the accident; that appellant failed to maintain a proper guard at the entrance of the elevator shaft at the place of the accident, and that this was negligence directly causing or contributing to the accident; that appellee was not guilty of negligence in placing his head over into the shaft of the elevator; that by reason of his injuries appellee was damaged in the sum of $5,500.

Upon the trial appellant sought to abate the suit, contending that in such cases as this, under the provisions of the present Workmen's Compensation Act, an injured employé must elect to pursue his remedy against the insurance company on the one hand or the third party causing his injury upon the other, but that he cannot recover against both; that, appellee having elected to pursue his remedy against the insurer through the Accident Board, he cannot now maintain an action against Haynes, the third party. We overrule this contention. The statute, if deemed intelligible for any purpose, which is quite doubtful, seems to contemplate, and under it the courts expressly hold, that the employé may pursue both remedies, although the insurance company in such case is entitled to be subrogated to the employé's right of recovery against the third party. This right of subrogation was recognized and enforced in this cause, and the statutory provision satisfied. Article 5246 — 47 (Vernon's 1918 Supp.); Huson's Workmen's Compensation, § 232; Stowell v. Ins. Ass'n (Tex. Civ. App.) 259 S. W. 311; Cameron v. Gamble (Tex. Civ. App.) 216 S. W. 459; Lancaster v. Hunter (Tex. Civ. App.) 217 S. W. 765. Appellant's first and second propositions and the assignments of error thereunder, in which this question is presented, are overruled.

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