Houston Pipe Line Co. v. Peddy, 12932

• Citation: 292 S.W.2d 364
• Decision Date: 07 June 1956
• Docket Number: No. 12932,12932
• Parties: HOUSTON PIPE LINE COMPANY, Appellant, v. D. O. PEDDY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 364

292 S.W.2d 364

HOUSTON PIPE LINE COMPANY, Appellant, v. D. O. PEDDY et al., Appellees.

No. 12932.

Court of Civil Appeals of Texas, Galveston.

June 7, 1956.

Rehearing Denied July 12, 1956.

Floyd Enlow Angleton, Blades, Kennerly & Whitworth, Newton M. Crain, Jr., and W. H. Blades, Houston, for appellant.

Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Masterson, Williams & Smith and Fred L. Williams, Jr., Angleton, Williams, Lee & Kennerly and Thomas H. Lee, Houston, for appellees.

CODY, Justice.

This is an action to recover damages for personal injuries brought against the Houston Pipe Line Company by D. O. Peddy in the District Court of Brazoria County. Defendant's motions for directed verdict and for judgment notwithstanding the verdict were duly overruled; and upon the answers of the jury to special issues which convicted defendant of negligence which in turn the jury found proximately caused plaintiff's injuries, the court rendered judgment against defendant in the sum of $73,365. And upon the stipulation of the parties that in case judgment should be rendered against defendant, the court additionally rendered judgment against defendant for the further sum of $2,060, covering hospital, medical and doctor's expenses.

However, the compensation carrier for the Barry Construction Company, for which the plaintiff was working at the time he received his injuries, being the New Amsterdam Casulaty Company, duly paid plaintiff or for his behalf the compensation benefits to which he was entitled. And said compensation carrier intervened in said suit seeking to recover out of any recovery of plaintiff the amount of the benefits which it had so paid out, together with attorney's fees. And the court awarded said intervenor the recovery of the compensation benefits for which it sued, together with $500 attorney's fees, to be taken out of such sum as plaintiff recovered.

In order to understand the points on which defendant predicates its appeal, it is here necessary to make the following statement: A three hundred foot section of defendant's transmission line, inclusive of a valve, which lay beneath a highway and railroad crossing near Liverpool, in Brazoria County, had become defective, and had to be replaced with new pipe and a valve. The pipe line consisted of 16 inch pipe, and, as indicated, it lay beneath the surface of the highway and railroad crossing and carried live gas to defendant's customers. In connection with making said repairs, it was necessary, among other things, for the Houston representatives of defendant to notify its said customers residing in the towns on the other side from Houston from the place where the pipe had to be repaired when the gas and service would be cut, and when it would be restored. It was also necessary to remove the defective pipe from the earth and to replace it with new pipe. This required the use of special tools or equipment, and the service of men skilled in their use.

Among other equipment necessary to be used was a back hoe tractor to dig ditches and a 'bellhole' (being the hole necessary to be dug in order to remove the defective pipe, and to install the new pipe). Also, among the tools to be used was a welding rig to cut and weld the pipe, and two large sideboom tractors, weighing 30,000 pounds each to lift and lower the pipe into the bellhole, and other special equipment not necessary to enumerate. The Barry Construction Company owned equipment fitted to removing the defective pipe and employed workers skilled in the use thereof, and said company specialized in doing such work.

At the time defendant learned of the 300 foot defective section in its pipe line, the Barry Construction Company happened to be doing work for the defendant which said company had obtained by competitive bidding. Said work was being done under a written contract, which expressly provided that the work was being done by the Construction Company as an independent contractor. The defendant asked the Construction Company if it cared to do the repair work to the defective section aforesaid, to have a man down at the place where the reparis were needed to be made, and there meet a foreman which defendant would send. At this conference, defendant's foreman marked on the ground the points between which the defective pipe extended and had to be replaced. The Construction Company then contracted with defendant to do the repair work on a cost-plus basis.

The plaintiff sought to hold defendant liable on the ground that though he was an employee of the Construction Company, which was engaged in removing a section of defective pipe for defendant at the time of the cave-in of the bellhole, he was under the supervisory control of defendant and that defendant was negligent in that defendant failed 'to cause the banks or sides of the bellhole to be sloped,' and alleged other acts of defendant also to be negligence, which proximately caused his injuries. Defendant, in substance, plead that plaintiff was an employee of the Construction Company, and that the Construction Company was an independent contractor, and that defendant exercised no control over the manner, means, modes and methods the Construction Company used in digging the bellhole and in moving...