James Stewart & Co. v. Mobley

• Decision Date: 08 July 1955
• Docket Number: No. 14993,14993
• Citation: 282 S.W.2d 290
• Court: Texas Court of Appeals
• Parties: JAMES STEWART & CO., Inc., Appellant, v. H. B. MOBLEY, Appellee.

Page 290

282 S.W.2d 290

JAMES STEWART & CO., Inc., Appellant, v. H. B. MOBLEY, Appellee.

No. 14993.

Court of Civil Appeals of Texas, Dallas.

July 8, 1955.

Rehearing Denied Sept. 23, 1955.

Leachman, Gardere, Akin & Porter, Henry D. Akin, Dallas, for appellant.

R. T. Bailey and William L. Richards, Dallas, for appellee.

CRAMER, Justice.

This suit is upon a written indemnity agreement contained in a subcontract between appellant as contractor and appellee as subcontractor. This phase of the case was severed and submitted to the trial court upon an agreed statement of facts, as follows:

'On the 27th day of July, 1948 this defendant as contractor, and third party defendant as subcontractor, agreed to provide all labor and material and to complete the erection of all the light weight fill and cement work required for the project of erecting an office building for Texas Employers Insurance Association and Employers Casualty Company at Young and Akard Streets in the City of Dallas, Texas, for which contractor agreed to pay subcontractor $59,000, which said contract specifically provided among other things:

'V. Subcontractor shall be responsible for injuries to or death of all persons whether employed by subcontractor or otherwise, and for damage to any property whether belonging to subcontractor or to others, arising from acts of the subcontractor or its employees during the progress of the work, against all which injuries and damages to persons and property the subcontractor must guard and make good all such damage from whatever cause.

'In addition to the liability of the subcontractor for personal injuries or death, as hereinbefore set forth, and in the nature of collateral protection to contractor, the subcontractor shall take out, maintain and pay for public liability insurance in $ See Art. XXII limits and employers' liability or workmen's compensation insurance through agents and companies to be designated by the contractor, covering the public and all workmen engaged upon its work, such policies being in favor of the subcontractor to protect it against loss arising from injuries or death to persons, and this shall apply to any and all subcontractors of the subcontractor, and the subcontractor shall furnish to the contractor certificates of such insurance before the work is started. It is expressly understood and agreed that the contractor's designation of the insurance company and the limits of public liability insurance above mentioned, shall not release the subcontractor from its obligation to indemnify and save the contractor harmless from all expense in connection with any and all claims that may arise as a result of its employment on this work. In the event of suit being brought against the contractor or owner for any claim growing out of the above causes, the subcontractor shall pay all expenses of such litigation as soon and as often as incurred, and in the event of judgment being entered against the defendant in any such action, the subcontractor shall immediately after the entry thereof pay to the defendant the amount of such judgment. * * *

'XVI. The subcontractor understands that the hoists installed for the structure are for materials only, and subcontractor shall not permit or allow its employees to ride on any of the said hoists, and shall require its employees to comply with all safety requirements of the State and City codes, or posted by the contractor relating to the use of scaffolds, hoists, elevators and other appliances.

'Whenever the subcontractor shall use any scaffold, derrick, hoist, or equipment of any other kind belonging to the contractor, the subcontractor shall satisfy itself as to the safety of such facilities and hereby agrees to and shall relieve and hold the contractor harmless from any and all suits and actions that may be brought against the contractor for any injury or death to any person or persons or damage to property that may result from the use of said scaffolds, derricks, equipment or hoists, by the subcontractor or its employees.

'No one in the contractor's employ has any right to grant the subcontractor or his employees permission to ride on said hoists except executive officers of the contractor, and then only in writing.

'III. It is agreed that the subcontractor shall have the free use of the hoisting facilities and lights in place furnished by the general contractor, as required by the progress of the work and in cooperation with the other trades.

'II. Prior to June 7, 1949, contractor had installed a hoist, or elevator, on the side of the building for the use of its employees, the employees of subcontractors, and all others engaged on said construction job in transporting employees, materials and equipment used in connection with said construction job, which hoist, or elevator, belonged to contractor and was operated by an employee of contractor, C. O. Taylor, and, with the knowledge and consent of contractor, was used by said subcontractor's employees to raise and lower his employees, materials and equipment. On the 7th day of June, 1949, Arthur Watkins, while engaged in the course of his employment with subcontractor in performing part of the work which subcontractor agreed to perform under said contract, pushed a two wheel cart known as a 'Georgia buggy,' loaded with concrete, onto said hoist or elevator for the purpose of having same transported to a higher level where the cement was to be poured by said subcontractor's employees, and when the aid Arthur Watkins stepped onto the floor of said hoist or elevator, it fell into the basement carrying plaintiff and said Georgia buggy with it a distance of fifteen or twenty feet, inflicting personal injuries upon plaintiff; that the claims of the said Arthur Watkins are set out and shown in his first amended original petition on file herein, and it is made a part hereof for all purposes as if fully set out herein.

'Zurich General Accident &...