Moore & Savage v. Kopplin

• Decision Date: 15 February 1911
• Parties: MOORE & SAVAGE v. KOPPLIN et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 1033

MOORE & SAVAGE v. KOPPLIN et al.^†

Court of Civil Appeals of Texas.

February 15, 1911.

On Motion for Rehearing, March 29, 1911.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Carl Kopplin against the San Antonio Traction Company, J. P. Haynes, and Elizabeth B. Moore and J. H. Savage, executors of G. Bedell Moore, and cross-action by Moore & Savage, executors, against J. P. Haynes. Judgment for plaintiff against Moore & Savage, executors, and in favor of the other defendants; and judgment for J. P. Haynes in the cross-action, and Moore & Savage, executors, appeal. Judgments affirmed, except as to judgment for J. P. Haynes in the cross-action, which judgment is reversed and remanded.

Houston, Boyle, Storey & Davis and Guy S. McFarland, for appellants. Ernest Fellbaum, H. C. Carter, P. J. Lewis, and Ogden, Brooks & Napier, for appellees.

NEILL, J.

This is a suit brought by appellee Kopplin to recover damages for personal injuries alleged to have been inflicted by the negligence of the San Antonio Traction Company and J. P. Haynes, appellees, and G. Bedell Moore of whose estate the appellants, Elizabeth B. Moore and J. H. Savage, are the independent executors.

After the formal allegations, the substance of plaintiff's first amended original petition, upon which the case was tried, is: That on September 24, 1907, plaintiff was a passenger on one of the Traction Company's cars, and was in the act of entering the car from the step of its rear platform. When it was running westward along East Houston street, he was struck by an upright post or obstruction negligently placed in the street in dangerous proximity to the railway track and was thereby thrown to the ground with great violence and seriously and permanently injured. That said obstruction was negligently placed in the street by the defendant J. P. Haynes, and consisted of posts set upright in or upon the ground, supporting a plank or board fence placed in the street within the distance of 33 inches of the track, so near a passing car as to endanger the life of a passenger entering or standing on its steps. That such obstruction was so placed in the street without authority of law and negligently maintained there for three weeks prior to the date of plaintiff's injuries. That when the injury was inflicted there was in force a valid city ordinance prohibiting the placing of any obstruction in any street, square, or alley of the city of San Antonio, and prescribing a penalty for its violation. That placing said obstruction in the street in such manner as to endanger persons taking passage on street cars was wrongful, negligent, and in violation of said ordinance and the proximate cause of plaintiff's injuries. That defendant J. P. Haynes negligently and unlawfully erected said fence in East Houston street at the special instance and request of G. Bedell Moore, or his authorized agent, for the accommodation of Moore, who was the owner of and was erecting a building on East Houston street known as the "Moore Building," and that it was negligent on the part of said Moore to cause said board fence to be so erected and in violation of said city ordinance, and that therefore said Haynes and Moore are liable to plaintiff for the injuries caused him by reason of such negligence. That since defendant J. P. Haynes, on June 9, 1908, filed his original answer, G. Bedell Moore died, leaving a will in which J. H. Savage and Elizabeth B. Moore were named as independent executors of his estate, which will was duly probated; the executors named qualifying under their appointment. That the San Antonio Traction Company knowingly permitted said obstruction to be and remain in said street in such close proximity to its passing cars as to endanger the life of persons entering or standing on the step thereof, and continued to operate its cars along the part of the street so obstructed, and in so doing was guilty of negligence in violating the duty it owed its passengers, not having exercised ordinary care in passing the obstruction to prevent their injury; and that plaintiff's injuries were proximately caused by such negligence. The petition specifically describes the nature and character of plaintiff's injuries, and closes with a prayer for judgment against all the defendants for his damages in the sum of $25,000.

The Traction Company answered by a general denial, a plea of contributory negligence, specially pleaded that it had nothing to do with placing or maintaining the alleged obstruction in the street, and then averred that such obstruction was negligently erected and maintained there by its codefendant, J. P. Haynes, and by G. Bedell Moore, the testator, of whose will its other two codefendants are the executors, whose negligence was the proximate cause of plaintiff's injuries for which they were primarily liable, and asked that, in the event judgment was recovered against it, a judgment for a like amount be rendered in its favor over against them.

The first amended answer of the defendant J. P. Haynes contained a general denial, and special plea which is, in substance, that in erecting the fence along the street as alleged by plaintiff he did so at the special instance and request of G. Bedell Moore, and not as an independent contractor; that, while he was under contract to construct for Moore a building opposite the street where the fence was built, the erection and maintenance of the fence was not comprehended by nor an incident to his contract, but was done with the view to placing an engine in the building to be used in the operation of an electric plant which was being installed therein under another and different contract made between Moore and a different party with which he was in no wise interested nor had any connection with whatever; that the fence was erected by the permission of and in accordance with a valid ordinance of the city of San Antonio, and under Moore's orders and directions, and without any compensation therefor to this defendant; that if any one is responsible for plaintiff's injuries, other than himself, the Traction Company and G. Bedell Moore are the ones. The answer closes with a prayer that the executors of Moore be made parties defendant, and that, in event judgment is entered against him in plaintiff's favor, he have judgment for a like amount over against the Traction Company and Moore's estate.

The answer of the defendant's executors contains a plea of not guilty, of contributory negligence, a special denial of the erection of the fence by their testator, or under his authority or for his benefit, and that neither the Traction Company nor Haynes is entitled to recover over against the estate of G. Bedell Moore, for that the latter was an independent contractor and erected such fence in furtherance and performance of his contract, nor could Moore have reasonably anticipated, as the natural consequence of the erection of said fence, that any injury would ensue to any one riding on a street car upon any place allowed by the Traction Company under its rules. Their answer closed with a prayer that, if any of the parties should recover against them, they have judgment over against J. P. Haynes for the amount so recovered.

The case was tried before a jury and resulted in a judgment in favor of the plaintiff against the defendants J. H. Savage and Mrs. Elizabeth B. Moore, independent executors of the estate of G. Bedell Moore, for the sum of $10,000; that plaintiff do not recover anything from the Traction Company nor from J. P. Haynes; and that said independent executors recover nothing as against their codefendant, J. P. Haynes, on their cross-action against him. From the judgment the plaintiff Kopplin gave notice of appeal, which was perfected by his filing an appeal bond payable to all the appellees and assigning errors. The defendants J. H. Savage and Elizabeth B. Moore, as independent executors of G. Bedell Moore, also gave notice of appeal, filed assignments of errors, and, as such executors, prosecute their appeal without bond.

The appellant Kopplin in that part of his brief which presents his assignments of error makes this statement: "In the event this court should, for any reason, reverse the judgment in favor of the plaintiff, Carl Kopplin, against the executors of the Moore estate, then, and in such event only, the plaintiff, Carl Kopplin, presents his assignments of error on his appeal from the judgment against him in favor of the codefendants, San Antonio Traction Company and J. P. Haynes, and, in the event the judgment against the executors of the Moore estate should be reversed by this court, then the said Kopplin prays that the judgment rendered against him and in favor of the codefendants, San Antonio Traction Company and J. P. Haynes, be also reversed." In view of this we will first consider such assignments of the appellant executors as assail the judgment in favor of Kopplin against them.

The first of these assignments complains that the court erred in refusing a peremptory charge asked by these defendants directing the jury to return a verdict in their favor for the reason that it affirmatively appears from the evidence that the obstruction in the street alleged to be the cause of plaintiff's injuries was placed there by their codefendant, J. P. Haynes, who was an independent contractor.

In the view we take of the matter thus presented, we deem it unnecessary, in disposing of the assignment, to determine at present whether, in erecting the fence, Haynes was and acted as an independent contractor or not. It is an elementary principle, universally recognized, that where the employer has no duties, but the contractor has, the former is not responsible, but the latter is liable for a breach of such duties. But, while it is competent for one having any particular work to perform to enter into an agreement with an independent contractor to take charge of and do the...