Loyd v. Herrington
| Decision Date | 04 February 1944 |
| Docket Number | No. 14603.,14603. |
| Citation | 178 S.W.2d 694 |
| Parties | LOYD v. HERRINGTON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; A. J. Power, Judge.
Action by F. D. Herrington against Ernest Loyd to recover damages alleged to have been sustained by the explosion of a dynamite cap resulting from the negligent acts of defendant while acting through an agent, servant, and employee. Judgment for plaintiff, and defendant appeals.
Affirmed.
Strasburger, Price, Holland, Kelton & Miller, of Dallas, and Todd, Crowley & Gambill, of Fort Worth, for appellant.
Chester B. Collins, of Fort Worth, and Will R. Saunders, of Dallas, for appellee.
Appellant Ernest Loyd prosecutes this appeal from an adverse judgment against him in favor of F. D. Herrington, who sued to recover damages alleged to have been sustained by the explosion of a dynamite cap, resulting from the negligent acts of Loyd while acting through an agent, servant and employee.
The pleadings are lengthy and we shall content ourselves with a brief statement disclosing the issuable points. We shall later refer to the jury verdict which will reveal the alleged negligence imputed to appellant (Loyd) and his defenses thereto.
The petition, in effect, states: At the time herein complained of and for a long time prior thereto, appellant (Ernest Loyd) was engaged in contracting with the State of Texas for the construction and repair of public highways in the State. That prior to the incidents involved here, appellant had contracted with the State to build a road in Stephens County; that the area in which said road was to be built was of such a nature that it required blasting of rock and hard dirt with dynamite and dynamite caps. In order to carry out his contract, appellant made some kind of contract with J. L. Johnson, R. M. Keel, Ray Boswell, B. D. Rowe, Horace Clepper and others, whereby said parties began the building and construction of the road for the said appellant. That the work to be done required much blasting of rock and other hard substances and that same was known to appellant and those employed by him to be inherently and intrinsically dangerous to themselves and the public generally, unless every precaution should be taken to prevent injuries; they and each of them knew that by the means employed for blasting, many of the sticks of dynamite and the caps thereon would not explode, and that they each knew that much of said explosive material did not in fact explode when other parts of it did explode; that no attempt was made by appellant and those engaged in the work to gather up and safely keep those parts that did not explode, but it would be left lying around where it was calculated to do much harm to persons who came in contact with it. It was alleged that many automobiles and trucks were used on the job which required constant repair and when repairs were needed they would be taken to appellee's place of business, for appellee to make the needed repairs. That appellant and those in immediate charge of said dynamite and caps failed to use necessary precautions to gather up and put in a safe place the unexploded dynamite and caps, and that said Rowe, one of those engaged in said work, on about January 31, 1942, for the purpose of playing a prank on said Keel, another man engaged in said work, placed one of the unexploded caps on the motor of the pickup truck driven by Keel, wired to the spark plug of said motor in such a way, as Rowe thought, as would explode and frighten Keel when the motor started. Keel started the motor and drove the truck away, but for some reason the cap did not explode, and the prank failed. The wiring only caused a cylinder in the motor to miss. After the prank failed, Keel continued to drive the truck the remainder of the day, during which time the cylinder continued to miss; that late in the afternoon Keel drove the pickup truck to appellee's garage and requested appellee to repair it and correct the missing cylinder. That without knowledge that a dynamite cap had been wired to the motor, appellee raised the hood to inspect the motor, whereupon the cap exploded and part thereof struck appellee in the eye, causing much pain and suffering and the loss of his eye. Many acts of negligence are specifically alleged as against the employees Rowe, Boswell, Keel, Clepper and Johnson, and appellant, proximately causing the injury. All of said acts are imputed to the alleged master, Ernest Loyd. These acts are reflected by the special issues submitted and answered.
Appellant's 40 special exceptions, along with the several subdivisions thereof, were overruled by the court, and certain of appellant's assignments of error are predicated on that ruling.
Aside from the general denial, appellant specially pleaded that he did contract with the State to build the road, but that he sublet to one J. L. Johnson, as an independent contractor, that portion where the accident happened. Sufficient allegations were made of the necessary facts to make Johnson an independent contractor of that part of the work. He further alleged in effect that while Johnson was performing his contract with appellant, Johnson employed one Keel as foreman; that one of Johnson's employees named Rowe, an oiler on the job, attached the dynamite cap to the motor of a Johnson pickup truck which was being used by Keel, in order to play a prank on his foreman, Keel. That in doing so, Rowe was not in the course of his employment, but upon his own initiative sought to play the prank; that the cap did not explode as Rowe had anticipated, but that Keel drove the truck away and later took it to appellee for repairs when the accident complained of happened.
Appellant also pleaded substantially the facts above mentioned as constituting a new and independent cause of the accident to appellee.
At the conclusion of taking testimony, appellant filed a lengthy motion for an instructed verdict. The motion contains many of the points presented here. Court overruled the motion, to which ruling exception was taken.
In response to special issues, the jury found that: The dynamite caps used in connection with constructing the road were dangerous instrumentalities; the work being done on the road was inherently dangerous; the prank attempted to be played by Rowe on Keel failed; Rowe failed to take proper precautions to avoid injury to plaintiff (appellee) from said dynamite caps; Rowe permitted large numbers of unexploded dynamite caps to remain on and immediately adjacent to said road; Rowe failed to keep in a safe place the cap placed on the truck; after the prank failed Rowe abandoned the dynamite cap which he had attached to the truck; Rowe was negligent in failing to remove the dynamite cap from the truck after his prank failed; by appropriate inquiries the jury answered that each of the acts of Rowe inquired about were negligence and proximately caused the injuries to appellee. Special Issue 13 was alone applicable to Rowe, and in response to that issue the jury found that his act in attaching the dynamite cap to the truck was negligence and proximate cause. To avoid repetitions, we observe that special issues similar to those pointed out concerning the acts of Rowe (except as to No. 13) were submitted relating to the acts of each of the other employees, Boswell, Keel, Clepper, Johnson and of appellant. Affirmative answers were returned to each, including inquiries about negligence and proximate cause. There were further findings in the verdict that F. D. Herrington received an injury to his right eye as a result of the explosion of the dynamite cap; the jury found his damages to be $25,250; that the placing of the cap on the truck was not a new and independent cause, and that the taking of the truck with the attached unexploded dynamite cap to appellee's garage was not a new and independent cause of the injury.
There was a stipulation made that $281 was a reasonable amount for hospital bills in the event plaintiff should recover. On the verdict returned the court entered judgment for plaintiff (appellee) for the aggregate amount found by the jury and the agreed hospital expense. Motion was filed by appellant for judgment notwithstanding the verdict, which was overruled, as was also appellant's motion for new trial; hence this appeal.
There are 553 assignments of error contained in the motion for new trial and those relied upon are presented here in 25 points in appellant's brief.
Points one and two assert error in the refusal of the court to hold, as a matter of law, that appellant was not liable to appellee in damages because (a) the testimony affirmatively shows that the injuries were sustained as a result of an attempted prank by Rowe while not acting within the scope of his employment, and (b) the testimony affirmatively shows that when Rowe turned aside from the course of his employment and placed the cap on the truck which resulted in appellee's injuries, such act of Rowe was a new and intervening cause of the injuries sustained. These points are based on assignments of error 1, 2 and 3. By reference to the assignments we find they are predicated upon a lack of pleading to support the jury findings on these questions. Special exceptions were presented to the pleadings in this respect and were overruled. As above pointed out, appellant saved his rights under these points by requesting an instructed verdict and his motion for judgment non obstante veredicto.
The pleadings were ample to present appellee's theory of the case. It occurs to us that appellant defended upon a somewhat different ground to the situation relied upon by appellee for recovery. At any rate, the issue of liability was fairly raised, and whether or not there was liability by appellant is the controlling factor in the case. There is little dispute as to the facts involved. We have seen no Texas case which decides the...
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