Hernandez v. Heldenfels, A-9623

• Citation: 374 S.W.2d 196
• Decision Date: 27 November 1963
• Docket Number: No. A-9623,A-9623
• Parties: Roman HERNANDEZ, Petitioner, v. F. W. HELDENFELS et al., Respondents.
• Court: Supreme Court of Texas

Page 196

374 S.W.2d 196

Roman HERNANDEZ, Petitioner, v. F. W. HELDENFELS et al., Respondents.

No. A-9623.

Supreme Court of Texas.

Nov. 27, 1963.

Rehearing Denied Jan. 8, 1964.

Lyman & Sudduth, McDonald & Spann, Corpus Christi, for petitioner.

Kleberg, Mobley, Lockett & Weil, Elmer H. Theis, Keys, Russell, Keys & Watson, Corpus Christi, for respondent.

NORVELL, Justice.

Roman Hernandez recovered a judgment against Heldenfels Brothers, a partnership, based upon personal injuries suffered by him when he was struck by a truck loaded with asphalt. The Court of Civil Appeals reversed upon the ground that Hernandez was a mere licensee upon the premises where he was injured and that Heldenfels, as the 'occupier' of such premises was not guilty of a breach of duty owed to Hernandez. Tex.Civ.App., 366 S.W.2d 641. The premises were owned by Southwestern Oil & Refining Company who was the employer of Hernandez. At the time of injury, Hernandez and another employee, Martinez, were on the company's property going from one place to another within the company's Plant No. 2 under express orders of a superior in the company's organization. In our opinion, Hernandez as a servant of the owner of the property going from one place to another within the confines of the plant was not a licensee of Heldenfels. His legal status was akin to that of an invitee in that the occupancy of Heldenfels was not of such a nature that employees of Southwestern Oil & Refining Company had no right to be upon the premises except by leave of Heldenfels.

The following is a brief summary of the pertinent facts:

At approximately 7:00 a. m. on the morning of April 17, 1953, Hernandez entered the main gate of the company's Plant No. 2, and walked along a private driveway to a quonset hut or warehouse where he reported for work. This quonset hut was situated approximately 1000 feet from the gate. This driveway was being rebuilt by Texas Engineering Construction Company, Inc. under a contract with Southwestern Oil & Refining Company. Texas Engineering had constructed concrete curbs and gutters and installed a caliche roadbed. Heldenfels as a subcontractor under an oral agreement, had begun to lay the asphalt topping on this road. A barrier to stop vehicular traffic during the topping operation had been placed at the main entrance to the plant and the road area was occupied in part by an asphalt spreader and trucks carrying asphalt to the spreader. It appears, however, that Southwestern's employees continued to walk on and along the roadway during the road rebuilding operations in order to get from the main gate to specific areas on the plant property.

Upon reporting for work, Hernandez and Martinez received directions from their foreman to report to Plant No. 1 which was nonadjacent and some blocks distant from Plant No. 2. They were instructed to return to the main gate for transportation to said Plant No. 1. The foreman told them to walk along the north or left side of the private roadway as Heldenfels had laid a second coat of asphalt along the south side the day before which would probably be soft and sticky. Hernandez was struck and Martinez brushed by an asphalt truck at a point approximately 300 feet east of the quonset hut as they were walking toward the main entrance gate. Near the area where the accident occurred, some large overhead fans had been installed which were in operation as a part of the plant's equipment. These fans were noisy and probably made it difficult to hear trucks operating in the area. The asphalt spreader was near the main entrance to the plant and Hernandez was struck by a dump truck which was traveling in reverse along the north or left-hand side of the road (from Hernandez' standpoint), toward the asphalt spreader for the purpose of loading the spreader with asphalt.

All defendants except Heldenfels were absolved of liability by the jury's findings. As to Heldenfels Brothers, the jury found that they were in control of the hauling, spreading and rolling of asphalt upon the roadway; that they were negligent in failing to provide an employee or watchman 'to see to it that the area was clear of pedestrians behind the truck which backed over Roman Hernandez' and that they were negligent in failing to give a visual signal 'to warn a pedestrian situated as was Roman Hernandez.' Accompanying proximate cause issues were also answered in Hernandez' favor.

The jury found against Heldenfels upon issues submitting the defenses of voluntary exposure to risk and contributory negligence. Judgment on the verdict was rendered in favor of Hernandez for the amount of damages found by the jury, namely, $20,500.00.

It has been stated that the only duty owed by an owner of property toward a licensee upon such property is the duty not to injure such licensee wilfully, wantonly or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This rule has been stated in somewhat different language and it is applicable to an occupier of land, who may not be an owner but is entitled to exclusive control thereof. See, Bustillos v. Southwestern Portland Cement Co., Tex.Com.App., 211 S.W. 929; Holt v. Fuller Cotton Oil Co., Tex.Civ.App., 175 S.W.2d 272, wr. ref.; Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737, ref. n. r. e.; Schroeder v. Texas & Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, no wr. hist. Sections 331 and 342, American Law Institute's Restatement of the Law of Torts; 38 Am.Jur. Negligence, §§ 104 and 105; 65 C.J.S. Negligence §§ 32 et seq.

Under the facts of this case, however, we are unable to agree with the Court of Civil Appeals that Hernandez was a mere licensee. The thesis of the appellate court is that as Heldenfels was the occupier of the premises-the roadway in question-and Hernandez had no business with Heldenfels and was not engaged in furthering Heldenfels' interest in any way, he was necessarily a licensee. Had Heldenfels been entitled as a matter of right to an exclusive possession of the premises as against the owner, this theory might be tenable. However, as we view the record, there is no evidence that Southwestern, as the owner, granted to Texas Engineering or to Heldenfels an exclusive right. Heldenfels Brothers had the right to occupy such portions of the roadway as were necessary for them to use in carrying out the obligations which they had assumed as a subcontractor, but they did not have the right to bar the owner and its employees therefrom. In order to reach the quonset hut where the time clock was located and where he reported to work, Hernandez walked along the roadway. Upon returning to the main entrance from the quonset hut, as directed by his foreman, he was walking on the roadway where his superior told him to walk. His position on the roadway at the time he was injured was not due to any leave of Heldenfels but under right of his employer,-the owner of the premises. In our opinion, there is no evidence to suggest that Heldenfels' use of the roadway for the purpose of placing an asphalt too thereon was intended to preclude a use thereof by the owner's employees in going from one section of the plant to another. Both Heldenfels and Hernandez were using the roadway because the interests of Southwestern as the owner required such use. Both, in a sense, were invitees of the owner and the fact that the roadway was a private way does not vary the legal consequences of substandard action from that encountered when two persons are equally entitled to make use of a public road. Each owes a duty to prevent injury to the other through negligence. The case was submitted to the jury upon issues of negligence and contributory negligence and in our opinion such submission was correct.

Respondent cites a number of cases which hold that when an employee of the owner of premises goes upon a particular portion of such premises, which are under the control of a contractor for the purpose of erecting structures thereon or making repairs thereto, such person is not an invitee of the contractor. In most of these cases the purpose for which the injured person went upon the portion of the premises occupied by the contractor was regarded by the courts as being one which was personal to the injured party rather than in furtherance of his employer's interests.

The facts in the case of Gile v. J. W. Bishop Co., 184 Mass. 413, 68 N.E. 837, are similar to those presented by the present record. The defendant was engaged in the alteration of structure upon the premises of the City Manufacturing Company which continued with its business operations during the construction period. The plaintiff was the employee of the City Manufacturing Company and lawfully upon the premises in furtherance of the business of the manufacturing company when injured. The defendant contended that under the circumstances the plaintiff was a mere licensee and that the defendant owed him no duty, except to refrain from wilfully or wantonly injuring him. The Supreme Judicial Court of Massachusetts stated in its opinion that:

'The defendant was not in exclusive occupation of the yard and grounds of the City Manufacturing Company. It used them so far as was necessary for the convenient performance of the work which it had undertaken, and at the same time the employe § of the company were expected to use them so far as was necessary or proper in the prosecution of the business of that company. The defendant was therefore bound to exercise reasonable care in reference to these employe § who were rightfully there.'

In Kitchen v. Riter-Conley Mfg. Co., 207 Pa. 558, 56 A. 1083, it appeared that according to a jury verdict Kitchen, an employee of the Carnegie Steel Company, was injured through the negligence of employees of the Riter-Conley Manufacturing Company. It was urged upon appeal that the jury should have been instructed that Kitchen was a trespasser when injured. The particular work being done by Riter-Conley...