J. A. Robinson Sons, Inc. v. Ellis

• Decision Date: 30 January 1967
• Docket Number: No. 7643,7643
• Parties: J. A. ROBINSON SONS, INC., et al., Appellants, v. Mary Francis ELLIS et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 728

412 S.W.2d 728

J. A. ROBINSON SONS, INC., et al., Appellants, v. Mary Francis ELLIS et al., Appellees.

No. 7643.

Court of Civil Appeals of Texas.

Amarillo.

Jan. 30, 1967.

Rehearing Denied March 13, 1967.

R. A. Wilson, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Logan Ford, Burford, Ryburn & Ford, Dallas; L. A. White, Culton, Morgan, Britain & White, Amarillo, for appellants.

Splawn & Maner, Lubbock, John H. Splawn, Jr., Lubbock, of counsel, for appellees.

DENTON, Chief Justice.

This opinion is submitted in lieu of our opinion announced November 21, 1966.

Mary Francis Ellis and her three minor children brought this suit against J. A. Robinson Sons, Inc. and Bowden Construction Company, Inc., for the wrongful death of Joseph Henry Ellis, their husband and father respectively. Ellis' death occurred on September 21, 1964, when a cable broke causing the 'tail chain' attached to the cable to strike Ellis while employees of Robinson and Bowden were moving an 80-ton compressor unit from a 'low-boy' truck. U.S. Fidelity & Guaranty Co., the workmen's compensation carrier for El Paso Natural Gas Co., intervened to recover the amount paid to Ellis' survivors. A jury verdict was returned for the plaintiffs against the two defendants jointly and severally. Judgment, based upon the jury verdict, was entered for Mrs. Ellis for $80,000.00 and $40,000.00 for each of the three minor children plus a stipulated amount of $1633.63 for necessary funeral and cemetery costs. Both defendants have appealed and have filed separate briefs.

The eivdence concerning the events surrounding the incident set out in over 600 pages of statement of facts are largely undisputed. However, several material and important facts concerning the death are strongly contested. Bowden Construction Company contracted with El Paso Natural Gas Company to erect a compressor station near Bushland, Randall County, Texas. As part of the job, an 80-ton motor and compressor unit was to be set into place on the foundation of the structure. Bowden, the general contractor, hired J. A. Robinson Sons, Inc., a trucking company to move the compressor from a railway flatcar; transport it to the building site and set it upon its foundation in the building under construction. Robinson used three large trucks and a 'low-boy' described as a tandem truck with a flat bed upon which the compressor unit was moved. This equipment was operated by three truck drivers and three 'swampers' or helpers. Don Edler, a foreman for Robinson, was in charge of that crew. They removed the compressor from the railway car onto the 'low-boy' and then transported it some 4 1/2 miles to the construction site. Three employees of Bowden were at the rail site and assisted in the work there. As one Robinson employee stated, 'We were working together'. This same arrangement continued after the unit was removed to the construction site and operations were begun to remove the compressor from the 'low-boy' onto its permanent foundation. Roy Stone, Bowden's superintendent, was present at both the rail site and construction site but did not take an active part in supervising the moving operation. The 'low-boy' was spotted on the southeast side of the uncompleted building, facing north. Two of Robinson's trucks were spotted some 75 feet west of the compressor. A 1 1/8 inch cable was placed around the compressor and then connected to the compressor by a 1 1/4 inch 'tail chain'. The cable consisted of six strands with 37 wires to each strand. Upon a hand signal by Robinson's foreman, the two truck drivers tightened their winch lines to pull the cable, which in turn was supposed to move the compressor from the 'low-boy' down some wooden skids onto the building foundation. Due to muddy conditions the trucks were unable to move the compressor until an 'anchor' truck was placed into service. Some four or five unsuccessful efforts to move the compressor were made before the fatal accident occurred. After adjusting the cable around the compressor the cable was again pulled and it broke. The tail chain was thrown in a northwesterly direction, across the uncompleted building and struck Ellis, who was standing approximately 72 feet away. He was killed instantly. The chain landed some fifteen feet beyond where Ellis stood when he was struck.

The jury found: one strand of the cable or 'lash line' broke during the pulling effort before the pull was made when Ellis was killed; that some employees of Robinson knew one strand was broken; that Robinson's employees continued to use the cable after they knew that one strand had broken; that such continued use was negligence and a proximate cause of Ellis' fatal injury; that Robinson failed to warn Ellis of the broken strand; that such failure was negligence and a proximate cause of the injury; that Robinson failed to use lubricants on the skids of the compressor prior to unloading it from the low-boy; that such failure was negligence and a proximate cause of Ellis' fatal injury; that Robinson failed to level the low-boy before applying pressure on the cable; that such failure was negligence and a proximate cause of the fatal injury; that some employees of Bowden Company knew one strand of the cable was broken prior to the accident; that Bowden, through its employees, permitted the use of the cable after it was known one strand was broken; that such action was negligence and a proximate cause of the injury; that prior to Ellis' fatal injury Bowden's employees failed to maintain that character of lookout for Ellis' safety as would be maintained by an ordinary prudent person under the same or similar circumstances; that such failure was a proximate cause of the injury; that Robinson's employees also failed to maintain a proper lookout and that such negligence was a proximate cause of the fatal injury; that Bowden's employees failed to warn Ellis that a strand of the cable had broken; and that such failure was negligence and a proximate cause of the injury; that Ellis was in the performance of his duties for his employer, El Paso Natural Gas Company at the time of his fatal injury; that Robinson's employees were grossly negligent in knowingly permitting the cable to be used after one strand was broken and in failing to warn Ellis of the broken strand; and that the two acts of gross negligence were each a proximate cause of the fatal injury; however no exemplary damages were awarded. In response to the defensive issues the jury found Ellis did not fail to maintain a proper lookout for his own safety; that Ellis' death was not the result of an unavoidable accident; that Ellis did not know, nor should have known, in the exercise of ordinary care that he was in a position of danger; and that Ellis did not fail to retire to a position of safety in respect to the attempt to move the compressor. Upon these findings, together with those of the damages issue, the trial court entered judgment for Mrs. Ellis and the three minor children against the two defendants jointly and severally.

Because of the multiplicity of issues and different positions of the two defendants, an orderly disposition of the case is not without difficulty. We will first discuss and dispose of Robinson's contention that plaintiffs' pleadings preclude any recovery against Robinson for the reason, under their pleadings, employees of Robinson were special or borrowed employees of Bowden. The plaintiffs' pleadings which form the basis of this contention, reads: Plaintiff alleges that at the time and on the occasion in question both defendants were in the process of attempting to unload the motor and compressor unit, from a trailer or 'low-boy' truck owned by Defendant J. A. Robinson & Sons, Inc., through the use of two trucks owned and operated by Defendant J. A. Robinson, its agents, servants and employees, who were working under the direct supervision and control of employees and agents of Defendant Bowden Construction Company, Inc. At the time of the occurrence made the basis of this suit; the winch lines, cables and chains of two trucks owned and operated by Defendant J. A. Robinson, were attached to the 90-ton motor and compressor unit, and the employees of this corporation were assigned to and working exclusively under the supervision and control of the Defendant, Bowden Construction Company; and its supervisors, foremen and other employees.' Robinson takes the position this is a judicial admission that Robinson's employees were in fact and law employees of Bowden; and that the latter Company alone is responsible for the operational negligence, if any, of any Robinson employees. Although it recognizes the general rule that the burden is upon an employer who wishes to escape liability on the ground its general employees entered into a special employment for another. Robinson says it was relieved of this burden by plaintiffs' own pleadings.

It is the general rule that admissions in trial pleadings are regarded as judicial admissions in that case, and require no proof of the admitted fact and authorize introduction of no evidence to the contrary. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726. Canales v. Bank of California (Tex.Civ.App .) 316 S.W.2d 314 (Ref. N.R.E.), and cases cited therein. However, as stated by Chief Justice Alexander in Motor Investment Company v. City of Hamlin, 142 Tex. 486, 179 S.W.2d 278: 'A pleader is not concluded by averments of legal inferences if such inferences are repugnant to true legal conclusions to be drawn from state of facts alleged in the same pleading.' The amended petition contained other allegations that must be considered. The sentence following the allegations quoted above contained this language: 'At the time and on the occasion in question . . . and employees of both defendants were in the process and attempting through the use of only two trucks to remove and slide the motor and compressor from the 'low-boy' onto skids.' The next paragraph of the ...