Jones v. Beck

• Decision Date: 13 October 1937
• Docket Number: No. 10124.,10124.
• Citation: 109 S.W.2d 787
• Parties: JONES v. BECK.
• Court: Texas Court of Appeals

109 S.W.2d 787

JONES v. BECK.

No. 10124.

Court of Civil Appeals of Texas. San Antonio.

October 13, 1937.

Rehearing Denied November 10, 1937.

Appeal from Fifty-Seventh District Court, Bexar County; Everett F. Johnson, Judge.

Suit by V. L. Jones against A. H. Beck, trading under the name of A. H. Beck & Co. From a judgment dismissing the cause after sustaining general demurrer to the petition, plaintiff appeals.

Affirmed.

Eskridge & Groce, Russell Talbott, and Hull & Oliver, all of San Antonio, for appellant.

L. L. Smith, of Dallas, and Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.

MURRAY, Justice.

Appellant, V. L. Jones, instituted this suit in the district court of Bexar county against A. H. Beck, trading under the name of A. H. Beck & Co., seeking to recover for alleged injuries sustained by appellant when he fell into an excavation 8 feet square and 25 feet deep, made by A. H. Beck.

The trial court sustained a general demurrer to appellant's first amended original petition. Appellant declined to amend, and thereupon the trial court dismissed the cause, from which action of the trial court this appeal is prosecuted.

The pertinent portions of appellant's first amended original petition read as follows:

"I That heretofore on the 29th day of October, 1930, plaintiff was employed as a carpenter by Elmer Sigler & Company and was working on the construction of a building now known as the Thomas Jefferson High School in the City of San Antonio. The nature of such work was to erect concrete forms in holes dug by the defendant, A. H. Beck & Company, who were subcontracors doing the excavating work on said job. That A. H. Beck & Company had excavated a large hole on the south side of what was to be the Thomas Jefferson High School such hole being approximately 8 ft. square and 25 ft. deep. That it was the duty of the defendant to excavate said hole, remove the dirt therefrom so as to allow the employees of Elmer Sigler & Company to erect the concrete forms and to allow the concrete to be poured into the forms and thereafter it was the duty of the defendant to backfill on the forms and replace the dirt in and around the concrete. That the defendant was the only excavating contractor on the job and he alone was responsible for the proper handling of the dirt and the defendant was familiar with the fact that other employees were required to work in and around the holes excavated by said A. H. Beck & Company.

"II That ordinary prudence and safety dictated that the dirt excavated from the holes should be placed at least ten feet back from the holes after it had been removed from the holes so that other workmen working around the holes would have sufficient room to work in safety without danger of falling on loose dirt or clods. That the defendant negligently failed to move the dirt back from the hole a sufficient distance and as a result of the negligence of the defendant the plaintiff was severely injured, the negligence of the defendant being as follows: (1) In placing loose dirt too close to the hole; (2) in leaving the loose dirt too close to the hole; (3) in not moving the loose dirt away from the hole; (4) in creating a dangerous and hazardous condition for other workmen working in and around said hole by leaving loose dirt right next to the hole and in not moving the dirt back a sufficient distance to give this plaintiff and other workmen room to do their work in safety; each and all of the foregoing acts of negligence were separate acts of negligence which proximately caused the accident in question.

"III That the plaintiff was required to work around said hole to erect concrete forms and in doing such work, because of the negligence of the defendant as aforesaid, plaintiff, V. L. Jones slipped and fell into such hole and sustained the following injuries, to-wit. * * *"

It appears from the petition itself that appellant, Jones, was not an employee of appellee, Beck, therefore there was no relation of master and...