James Stewart & Co. v. Law

• Decision Date: 25 October 1950
• Docket Number: No. A-2693,A-2693
• Citation: 149 Tex. 392,233 S.W.2d 558,22 A.L.R.2d 639
• Parties: , 22 A.L.R.2d 639 JAMES STEWART & CO., Inc., et al. v. LAW et al.
• Court: Texas Supreme Court

Page 558

233 S.W.2d 558

149 Tex. 392, 22 A.L.R.2d 639

JAMES STEWART & CO., Inc., et al. v. LAW et al.

No. A-2693.

Supreme Court of Texas.

Oct. 25, 1950.

Rehearing Denied Nov. 28, 1950.

Kilgore & Kilgore, of Dallas, for petitioner James Stewart & co., inc.

Lucian Touchstone and W. Richard Bernays, of Dallas, for petitioner Grand Prairie Const. Co.

Lawrence W. Anderson, of Dallas, for respondent John S. Law.

Carrington, Gowan, Johnson & Walker, and T. Lawrence Jones, all of Dallas, for respondent Pacific Indemnity Co.

HICKMAN, Chief Justice.

North American Aviation Company acting for and on behalf of Defense Plant Corporation entered into a construction contract with James Stewart & Company, Inc., which latter company thereafter entered into a subcontract with Grand Prairie Construction Company covering a portion of the construction work. Grand Prairie then entered into a subcontract with Dye and Shaw, who in turn contracted with Jett Nethery, a truck owner, for the hauling of gravel in connection with the performance of his subcontract. While hauling gravel under his contract, Nethery's truck ran into and injured John S. Law, an employee of North American. At the time he received his injuries Law was in the performance of his duties as an employee of North American, and Pacific Indemnity Company, compensation insurance carrier for North American, paid Law $3,127.05 as workmen's compensation insurance. Thereafter, Pacific Indemnity and Law sued Nethery, Dye and Shaw, Grand Prairie, and Stewart & Company for damages for the personal injuries sustained by Law. Pacific Indemnity's claim was based upon its right of subrogation in the amount paid Law as workmen's compensation. R.S.Art. 8307, sec. 6a. All of the defendants answered except Nethery, whereupon the plaintiffs took a nonsuit as against all defendants except Nethery and were awarded a judgment by default against him in the sum of $5,000.00, Pacific Indemnity Company being awarded judgment in the sum of $3,127.05 and Law being awarded judgment for the balance. Execution against Nethery was returned nulla bona. Pacific Indemnity Company and John S. Law then brought this suit for $5,000.00 against James Stewart & Company, Inc., which company impleaded Grand Prairie Construction Company, seeking indemnity under its subcontract with Grand Prairie, and Grand Prairie impleaded Dye and Shaw and sought indemnity by virtue of its contract with them. On the trial before the court without a jury judgment was rendered in favor of Pacific Indemnity and Law as prayed for against Stewart & Company, with judgment over in favor of Stewart & Company against Grand Prairie. Grand Prairie was denied recovery against Dye and Shaw, but no complaint is made of that portion of the judgment and it will, therefore, receive no further notice. On appeal the trial court's judgment was affirmed by the Court of Civil Appeals. 228 S.W.2d 601.

The theory upon which this suit was prosecuted and judgment rendered is that the contract between North American and Stewart & Company obligated the latter to see that all subcontractors carried automobile liability insurance, and that, since it failed to require subcontractor Nethery to carry any insurance, and Nethery did not in fact carry any insurance, Stewart & Company was liable to plaintiffs in the respective amounts claimed by them, on the theory of breach by Stewart & Company of its contract with North American under which Law was a third party beneficiary. That theory has been sustained by both courts below.

Respondents argue that petitioners did not make an issue in the trial court of respondents' allegation that Stewart & Company was obligated by its contract with North American to see that subcontractors carry automobile liability insurance, and are not therefore, entitled to have the question considered by the appellate courts. The record lends some support to that claim, but, since in our view it does not clearly establish it, we resolve the doubt in favor of the right of petitioners to have the question decided on appeal.

The contract between North American and Stewart & Company contained, among others, these provisions:

'Contractor shall, during the progress of the work, maintain (a) Workmen's Compensation Insurance for all of its employees employed at the site of the work, or if such insurance is not required by the laws of the state wherein the work is to be performed, Employer's Liability Insurance; (b) Contractor's Public Liability Insurance; and (c) Automobile Liability Insurance.

'The limits of liability provided in each Public Liability Insurance policy shall be $100,000 for injuries, including accidental death, to any one person, and subject, to the same limit for each person, $200,000 for any one accident involving two or more persons. Automobile Liability Insurance shall contain limits of $50,000 and $100,000 and shall also provide a property damage limit of not less than $5,000 covering all owned and rented equipment which is used in or on the work.

'Should all or any part of the contract be sublet, Contractor shall, in addition to the foregoing types of insurance, maintain Contractor's Protective Liability Insurance in an amount not less than $100,000 for injuries, including accidental death to any one person, and, subject to the same limit for each person, not less than $200,000 for any one accident involving two or more persons; except that Contractor's Protective Liability Insurance need not be maintained to the extent that in any cost-plus contract between contractor and a subcontractor the subcontractor maintains Workmen's Compensation or Employers' Liability Insurance and Contractor's Public Liability Insurance and Automobile Liability Insurance, as above set forth, and provided Contractor is named as an additional insured in such policies of insurance. Certificates of all such insurance shall be filed with Agent of Defense Plant Corporation.'

The applications for writs of error filed by Stewart & Company and Grand Prairie were granted because of our tentative view that by the provisions of the contract just quoted Stewart & Company did not obligate itself to see that subcontractors carry public liability or automobile liability insurance. A more careful consideration of the record since the case was submitted and argued than we were able to give it in passing on the applications for writs of error leaves us in doubt as to the meaning of those involved provisions. Of one thing we feel certain, and that is that the language is ambiguous. Because of its ambiguity we have resorted to the record as a whole to determine just what the parties intended by the language employed. That record affords us a satisfactory guide.

The contract between North American and Stewart & Company called for an expenditure in excess of thirteen million dollars. It contemplated that all or parts of the contract would be sublet. It reflected that North American was greatly concerned about the continued solvency of the contractor and subcontractors. One obvious reason for its concern was to afford it protection from suits which might be filed against it on account of the default or negligence of contractor or some subcontractor. That protection could be afforded by various types of insurance. The record discloses that beyond a doubt Stewart & Company interpreted the contract to impose upon it the duty to require of its subcontractors the maintenance of automobile liability insurance, and acted upon that interpretation. In its contract with Grand Prairie subletting a portion of its contract are these provisions: 'In addition to the liability of Sub-Contractor for personal injuries or death, as hereinbefore set forth, and in the nature of collateral protection to the Contractor, the Sub-Contractor shall take out, maintain and pay for Public Liability insurance, and, if any part of this subcontract is sublet, Contractors Protective Liability insurance in $100/200,000 limits and Employers' Liability or Workmen's Compensation insurance through Agents and in companies to be designated by the Contractor, covering the public and all workmen engaged upon its work, such policies being in favor of the Sub-Contractor to protect it against loss arising from injuries or death to persons, and this shall apply to any and all sub-contractors of the Sub-Contractor, and the Sub-Contractor shall furnish to the Contractors certificates of such insurance before the work is started.'

In its answer to plaintiffs' petition filed in the trial court in this case following a general denial and a special denial that plaintiffs were beneficiaries under its contract with North American, Stewart & Company impleaded Grand Prairie, seeking indemnity against it from any judgment that might be rendered in favor of plaintiffs, and in that pleading alleged:

'On or about March 24, 1942, North American Aviation, Inc., a corporation of Delaware, acting for and on behalf of Defense Plant Corporation, a corporation created by Reconstruction Finance Corporation pursuant to Section 5(d) of the Reconstruction Finance Corporation Act as amended (15 U.S.C.A. §§ 604, 606b), entered into a contract with James...