Humble Oil & Refining Co. v. Bell

• Decision Date: 12 November 1943
• Docket Number: No. 4333.,4333.
• Citation: 180 S.W.2d 970
• Parties: HUMBLE OIL & REFINING CO. v. BELL et al.
• Court: Texas Court of Appeals

180 S.W.2d 970

HUMBLE OIL & REFINING CO. v. BELL et al.

No. 4333.

Court of Civil Appeals of Texas. El Paso.

November 12, 1943.

Rehearing Denied January 6, 1944.

Appeal from District Court, Crane County; William L. Kerr, Judge.

Personal injury action by Francis Bell against Humble Oil & Refining Company wherein Ocean Accident & Guaranty Corporation, Limited, intervened. Judgment for plaintiff, and intervenor and the defendant appeals.

Judgment reversed, and judgment rendered for defendant.

The Supreme Court refused writ of error, 181 S.W.2d 569.

See, also, 172 S.W.2d 800.

K. W. Gilmore, of Houston, and Henry Russell, of Pecos, (E. E. Townes and R. E. Seagler, both of Houston, of counsel), for appellant.

John J. Watts, of Crane, and A. R. Grambling, of El Paso, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Crane County by the Humble Oil & Refining Company. Francis Bell, as plaintiff, sued the Humble Oil & Refining Company to recover for personal injuries alleged to have been inflicted on him through the negligence of said Company. The Ocean Accident and Guaranty Corporation, Ltd., was granted leave to intervene as having paid to plaintiff Bell, under a Workman's Compensation Insurance policy issued by it to Lee Hancock, the sum of about $5,000 for the same injury plaintiff sought to recover for against the Oil Company. On the verdict judgment was rendered against the Humble Oil & Refining Company in the sum of $25,000, approximately $5,000 thereof in favor of the Insurance Company and the balance to Bell.

For convenience, the parties will be hereinafter designated as "plaintiff," "intervener," and "defendant."

It was alleged by plaintiff that he was the employee of Lee Hancock; that Hancock was an independent contractor constructing a slush pit for defendant on a lease of defendant's in Yoakum County. In the construction of the pit it was necessary to blast caliche; that Hancock employed one O. M. Hodges to perform this work; Hodges, with one of his own employees and one furnished by Hancock, did this work on or about 10:30 A. M. on April 22, 1940; that in doing this work about seventeen different holes were prepared in the floor of the pit and two or more sticks of dynamite were used in each hole; when the blast was set off all of the dynamite did not explode; that on or about the night of April 23rd, 1940, while plaintiff, with the consent and procurement of the responsible employee of the defendant, was acting as night watchman of property adjacent to the property, the night being cold and no shelter being provided, he entered the pit, lighted a fire to warm himself, and the unexploded dynamite left in the pit aforesaid exploded, inflicting personal injuries on him.

Negligence was charged against defendant. Among the grounds was breach of the alleged duty to use ordinary care to furnish a safe place to work owing him as an employee of Hancock on the premises as an invitee of defendant; that defendant knew, or should have known, of the probable or possible presence of the unexploded dynamite and failed to warn him thereof; that the dynamite in the pit was inherently dangerous, and it was the duty of defendant to see after same was used that no unexploded dynamite remained therein, a failure to do so constituting negligence insofar as plaintiff was concerned; a negligent failure to inspect the pit after the blasting; that in the exercise of ordinary care defendant should have discovered the presence of the unexploded dynamite; further, that defendant assumed control of the work of Hancock.

Defendant answered by general denial, specially plead contributory negligence and various other special defenses.

The judgment is based on the following findings by the jury: That plaintiff, on the date of the accident, was an employee of Hancock; that on that date he was not an employee of defendant; that in the exercise of ordinary care defendant, prior to the accident, should have discovered the presence of the unexploded dynamite in the pit and was negligent in failing so to do; that such negligence was a proximate cause of the injury; that the defendant was guilty of negligence in failing to remove the dynamite prior to the accident; that such negligence was a proximate cause of the injury; that prior to the accident defendant had accepted the pit; that same was not in control and possession of Hancock at the time of the accident; in favor of plaintiff on all grounds of contributory negligence submitted.

At the close of the evidence defendant moved for an instructed verdict, which was denied; thereafter, after the verdict was returned, filed motion for judgment non obstante veredicto, which was likewise overruled, and thereafter in due time filed motion for a new trial.

Defendant predicates this appeal on ten points of error, six urging that as a matter of law it was entitled to an instructed verdict; the other four assign trial errors.

Basic of the duties owed to plaintiff by defendant was the relationship between them. Plaintiff plead that his presence on the premises of the defendant was that of an invitee, with the knowledge and at the special instance of the defendant, but as the employee of the independent contractor Hancock, "and one Henry Ingram, superintendent for said Lee Hancock later ratified employing of said plaintiff and said Lee Hancock remained on the job at all times so as to retain control over the said plaintiff as to the details of the work."

The jury found that at the time of the injury plaintiff was the employee of Hancock. The intervener acted upon that assumption and assumed liability under the Workmen's Compensation Law. Plaintiff, it is fair to assume, made claim against intervener under that law. Plaintiff's case as plead bases the duty owing to him on the alleged fact that he was on the premises as the employee of Hancock.

If on the premises of defendant as an employee of the independent contractor, the defendant owed plaintiff the duty of ordinary care to avoid injury to him. It was liable to him for the negligent acts or omissions of itself or its servants. While plaintiff was so upon the premises defendant was under the duty to exercise ordinary care to avoid injury to him.

It is likewise elementary that an owner having work performed on his premises by an independent contractor is not ordinarily liable for injury caused to an employee of such contractor by the contractor's negligence or the negligence of a fellow employee, negligence on the part of the owner not contributing thereto.

There are exceptions to the general rule that an employer is not liable for the negligent acts of his independent contractor and the employees of such contractor. Cameron Mill & Elevator Co. v. Anderson, 34 Tex.Civ.App. 105, 78 S.W. 8; Id., 98 Tex. 159, 81 S.W. 282, 1 L.R.A.,N.S., 198; Continental Paper Bag Co. v. Bosworth, Tex.Com.App., 276 S.W. 170.

In many respects the evidence in this case is undisputed. There is a dispute as to inferences to be drawn from the facts.

Defendant entered into a contract with Lee Hancock to do certain dirt work incidental to the drilling for oil on a lease owned by it near Denver City, in Yoakum County. Included in the work was the digging of a slush pit, a reserve pit, and the digging of holes for the anchor of the guy wires of the derrick. The contract was in writing; as a matter of law, the relationship created by that contract was employer and independent contractor. There is no dispute between the parties as to this. Hancock started the performance of the contract and plaintiff was hired by Hancock as a driver of teams. In the course of the excavation of a slush pit caliche was encountered and it was necessary to disintegrate same by blasting. Ingram, the superintendent of Hancock, employed Hodges to do this work, furnishing him a helper. Hodges was perhaps an independent subcontractor of Hancock. Hodges, with this helper and an employee of his own, drilled seventeen holes within the pit, loaded each hole with two or more sticks of dynamite and connected one of the sticks of the dynamite in each hole to a wire attached to a battery. The blast was set off by an electric current from the battery. After the blast was set off the bottom of the pit was plowed with a plow drawn by four horses or mules. Then the loosened earth and caliche were removed from the pit with a fresno pulled by four horses or mules. Before this work was done, it does not appear what, if any, inspection was made by Ingram, the superintendent for Hancock, or Hodges, to ascertain if all the dynamite had been exploded. The blast was set off about 10:30 o'clock A. M. on April 22, 1940. The plowing and fresno work immediately followed.

From the evidence it is reasonably established that there remained unexploded dynamite in the pit placed there by Hodges. We think, likewise, it is a fair inference from the evidence that defendant had notice that it would be necessary for Hancock to use dynamite in the performance of his contract for the construction of the slush pit.

Joe Rose was transportation superintendent for defendant in this area. In the scope of his duties was to see that the necessary equipment and material were placed on the ground in proper proximity to the preliminary work for the drilling of the oil well; further, it was his duty to see that Hancock's work under his contract was performed in accordance therewith. While the preliminary work was progressing Rose caused considerable of the contemplated material and equipment to be placed on or near the site of the proposed well. While Hancock was pursuing his work, from time to time Rose came to the site thereof. There is no evidence that he was present at the time when the holes were drilled for the blasting or at the time the blast was set off. However, we think that at the relevant time the evidence is sufficient to raise the issue that Rose had notice that the...