Henger v. Smith, 4596.
| Decision Date | 20 April 1949 |
| Docket Number | No. 4596.,4596. |
| Citation | 222 S.W.2d 422 |
| Parties | HENGER v. SMITH et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.
Personal injury action by Haskell Smith against W. C. Henger, doing business as Henger Construction Company, wherein the Texas Employers Assurance Association intervened as party plaintiff, claiming subrogation to right of plaintiff Smith to extent it had paid to Smith workmen's compensation insurance on a policy of workmen's compensation issued in favor of his employer, Westheimer Rigging & Heavy Hauling Company. From adverse judgment, the defendant appeals.
Judgment reversed.
O. O. Touchstone, Dallas, for appellant.
Carter Gallagher & Barker, Ben T. Warder, Jr., and Howard Barker, Dallas, for appellee Smith.
Burford, Ryburn, Hincks & Ford, Logan Ford and Roy L. Cole, Dallas, for appellee Insurance Co.
This is an appeal from the judgment of the District Court of Dallas County, 14th Judicial District. Haskell Smith, as plaintiff, recovered a judgment against W. C. Henger, d/b/a Henger Construction Company, defendant, in the sum of $28,000.00, for personal injuries alleged to have been suffered by him as a result of the negligence of defendant. The Texas Employers Assurance Association intervened as a party plaintiff, claiming subrogation to the right of plaintiff Smith to the extent it had paid to Smith workman's compensation insurance on a policy of workman's compensation issued in favor of his employer, Westheimer Rigging and Heavy Hauling Company as to its employees, to the extent of something over $8,500.00. It was provided that recovery of Smith's should inure to the benefit of said intervenor to that extent.
Haskell Smith will be hereinafter referred to as "Smith"; the Westheimer Rigging & Heavy Hauling Company as "Westheimer"; the Mercantile National Bank of Dallas will be referred to as the "Bank".
Trial was to the court with a jury, submission on special issues, and judgment was rendered on the verdict as above stated. Smith was an employee of Westheimer at all times relevant herein. Westheimer had contracted with the bank to lower certain heavy machinery into the basement of an office building which the bank was having constructed in the city of Dallas. This contract, while by its terms was with Henger, was authorized by the bank, and was to all intents and purposes a contract between the bank and Westheimer.
Prior to the 16th day of January, 1943, the bank had let sundry and various contracts in connection with the erection of this large office building. On the date as mentioned construction had proceeded to a considerable extent, and there were a great many contracts outstanding for work, labor and material. The plans and specifications for the building were drawn by the bank's architect. On January 16, 1943, the bank entered into a contract with W. C. Henger, in substance and effect that Henger in consideration of $50,000 would supervise and co-ordinate all of the work and construction in connection with the construction of said building, and would provide a complete and competent job organization as might be necessary to properly supervise and co-ordinate the construction of said building, so that all other work would be done in accordance with the plans and specifications of Walter W. Ahlschlager, Architect. This $50,000 compensation was payable $3,000 per month until $42,000 had been paid, and the balance of $8,000 when the building was finished to the satisfaction of the bank. It is provided in the contract that Henger should be referred to publicly and in the contract as General Contractor, but the use of the term in the contract or publicly should not in any way increase or decrease his obligations, his duties and liabilities as a general supervisor and co-ordinator of the construction of the bank's building. The contract further recites that the bank had purchased and entered into contracts for the purchase of materials to be used in the building, and numerous construction contracts covering specific work which had not yet been completely performed, and Henger was to have exclusive control of the supervision and co-ordination of the construction of said building under said contracts and contracts thereafter to be made by the bank. It was provided that the bank expressly reserved the exclusive right to purchase any and all materials, and to let such additional contracts for the construction of specific parts of the building as it desired, in its sole discretion; that Henger should not let any sub-contracts or purchase any materials except upon the written direction of the bank, and in such event all such contracts and purchases shall be charged to and paid by the bank. It provides for renting from Henger a certain hoisting engine; provides that Henger should do certain carpentry and other construction work with his own employees, but for such expense and payrolls he should be reimbursed, such work to be upon written direction of the bank. Henger further bound himself to devote approximately two-thirds of his own time to the performance of this contract. It is further recited: "It is expressly understood and agreed that this contract is largely one for the personal services of the aforementioned W. C. Henger, and in the event of his death prior to the final completion of the building, the bank shall have the option of terminating this contract."
It is averred that Henger under this contract entered into the exclusive possession of the building and the premises upon which it was being erected. Prior to the date of the injury to Smith there had been constructed a shaft leading from the first floor into the basement to a depth of about forty-three feet. The purpose of this shaft was to lower heavy equipment into the basement; that in connection with lowering such heavy equipment and machinery into the basement, a distance of about 43 feet, there was a substantial derrick erected over the opening of the shaft. This shaft and the derrick had been erected prior to the time Westheimer started the performance of its contract.
Westheimer's crew, of which Smith was a member, used this shaft on the afternoon of March 12th, 1943, and stopped work about 2:30 P.M. awaiting further materials to be delivered and to be lowered into the shaft. There was testimony when the Westheimer crew quit work on the 12th they covered the opening of the shaft with boards and timbers which were provided, and covered this covering with a canvas. The purpose of the canvas was to protect those working in the base-from the inclemency of the weather. Smith and the other members of the Westheimer crew reported for work about 8 o'clock on the morning of March 13th. They were shortly thereafter informed that there would be no work with the shaft until noon. Smith, on the request of his superior, went to the shaft for the purpose of making an inspection to determine the best way to install a line and to handle and move some heavy equipment after it had been lowered to the basement. He sought to lift up the canvas and peer down in the shaft, when in some way his feet slipped and he went down through a portion of the top of the shaft which had not been covered by boards. He sustained serious and painful injuries. Henger is charged with a number of negligent acts and omissions, each of which is alleged to be the proximate cause of Smith's injuries. Among the acts and omissions so charged are the following:
"Failing to have an adequate protecting banister or railing around such shaft; failing to maintain the premises in question in a reasonably safe condition; failing to properly inspect the premises in question in order to see that they were maintained in a reasonably safe condition; failing to have the opening of such shaft securely covered with timber over the entire surface of such opening, and failing to warn plaintiff that the canvas tarpaulin covering the shaft was not supported by timbers completely covering and protecting the open portion of the shaft."
In response to special issues the jury found in substance as follows: That on the occasion in question W. C. Henger failed to have an adequate railing around the shaft in question; that such failure was negligence and was a proximate cause of the fall of Smith; that prior to the fall Henger failed to properly inspect the shaft in question, that such failure was negligence and such negligence the proximate cause of the fall of Smith; that at the time Smith fell the shaft was not securely covered with timbers over the entire surface of the opening, that it was negligence to fail to have the shaft so securely covered, and such negligence was a proximate cause of the fall of Smith; that the failure to warn Smith that the tarpaulin covering of the shaft was not supported by timbers securely covering the entire surface of such opening was negligence, and such negligence was a proximate cause of the fall of Smith.
Certain issues of contributory negligence were submitted on behalf of Henger, but all of these were found in favor of Smith. Henger moved for an instructed verdict at the close of the evidence, which was refused by the court, and after the verdict was returned moved for judgment non obstante veredicto. This was overruled, and judgment entered as aforesaid.
This case is a little out of the ordinary in that in most cases involving a construction as large and complicated as the one here there is ordinarily a general contractor for the entire work; various portions of the work are ordinarily performed by sub-contractors, sub-contractors having contracted with the general contractor. Here this construction had progressed to a considerable degree through contracts for portions of the work of construction let by the bank, the owner, to various contractors.
The bank on the 16th day of January, 1943, made and entered into a contract...
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Smith v. Henger
...judgment in the district court, but the Court of Civil Appeals, one judge dissenting, reversed and rendered judgment in favor of Henger. 222 S.W.2d 422. We are faced at the outset with Henger's attack on the jurisdiction of this court on the ground that the application for writ of error was......