North American Dredging Co. v. Pugh

• Decision Date: 16 May 1917
• Docket Number: (No. 7391.)
• Citation: 196 S.W. 255
• Parties: NORTH AMERICAN DREDGING CO. v. PUGH.
• Court: Texas Court of Appeals

196 S.W. 255

NORTH AMERICAN DREDGING CO. v. PUGH.

(No. 7391.)

Court of Civil Appeals of Texas. Galveston.

May 16, 1917.

Rehearing Denied June 14, 1917.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by W. Pugh against the North American Dredging Company. From judgment for plaintiff, defendant appeals. Affirmed.

Maco & Minor Stewart and R. W. Houk, all of Houston, for appellant. T. S. Taliaferro and Hutcheson & Hutcheson, all of Houston, for appellee.

GRAVES, J.

This appeal is from a judgment of the court below for $1,950 in favor of appellee and against appellant, entered upon the findings of a jury upon special issues, as damages for certain alleged injuries to and depreciation in the values of his five-acre homestead and his one-acre burial ground, situated on opposite sides of Buffalo bayou near the Turning basin (Houston ship channel), and adjacent to what was known as section 3 of this channel under the contracts for dredging it.

It was alleged that, in dredging the ship channel in that vicinity, appellant built levees along its sides, and then pumped and caused to be cast upon appellee's lands large volumes of clay, mud, water, and silt, and also obstructed the natural drainage thereof, causing the damages complained of. Appellant's main defense was its contention, presented here under its first four assignments, that if appellee, Pugh, suffered any damages, it was through no fault of appellant, as none of the dredging in the vicinity where his lands lay was done by it, or its agents, but by an independent contractor, namely, the Standard American Dredging Company, with which it was not connected, over which it had no control, and for whose acts in doing the work that caused the damage it was in no way responsible. The questions of what company did the work causing the overflow, and whether the Standard American Dredging Company was an independent contractor, were submitted as issues Nos. 2 and 3 to the jury, who answered that appellant did it, and that the Standard Company was not an independent contractor; but appellant complains that there was no evidence to sustain these findings, and we are constrained to agree with it. The uncontroverted proof showed that appellee's lands were situated near the Turning basin on the Houston ship channel, that all that part of the channel for nine miles from the basin down the bayou toward Galveston was designated as section 3 under the dredging contracts; that the dredging of all the upper portion of this section where appellee's lands lay, and for at least 1,500 feet lower down, had been sublet by appellant to, and had all been actually done by, the Standard American Dredging Company with its own dredge boat, Houston; that appellant neither owned nor operated this dredge boat, nor had any control over the performance of the work thus done with it by the Standard American Dredging Company, nor itself did any dredging at all in that locality, or opposite to the lands of appellee, but began 1,500 feet below them and dredged from that point still further down with its own boat Galveston; that appellant assigned this upper portion of section 3 to the Standard American Dredging Company, and while appellant received from the original contracting company under the United States government the monthly payments for the portion of the channel dredged by the Standard Company, it passed these rights along to the latter company in their entirety, and had no control over the work done by it. In fact, appellee, Pugh, himself testified that the dredging near his land was done by the dredge boat, Houston. We think this undisputed evidence left no basis for the jury's findings that appellant did the work causing the damage, and that the Standard Company was not an independent contractor, but conclusively established the fact, not only that the Standard American Dredging Company did the work, but also that it was an independent contractor; and we sustain so much of the first four assignments as raise that issue; but in doing so, we are yet unable to agree with appellant that such conclusion necessarily determines the case in its favor, and that, if it had been reached by the trial court, would have entitled it to an instructed verdict there.

That an original employer is not ordinarily liable in damages for the acts of an independent contractor to whom he has let or sublet the work, and over whom he has retained no control and no authority as to directing the mode and manner of doing the work, is well settled. Southern Oil Co. v. Church, 32 Tex. Civ. App. 325, 74 S. W. 797, 75 S. W. 817; Cunningham v. Railway, 51 Tex. 509, 32 Am. Rep. 632; Simonton v. Perry, 62 S. W. 1090; Mo. Ry. Co. v. Ferch, 36 S. W. 488; Wood on Master and Servant, pp. 617, 618; Callahan v. Phillips Academy, 180 Mass. 183, 62 N. E. 260; 26 Cyc. 1573.

But it is likewise and equally well established that where one contracts for work to be done, the very nature of which subjects to probable injury the person or property of another, the party contracting for such work is liable for the acts of an independent contractor performing the same; and we think the last-stated principle rules the case at bar.

The general rule governing and applied by the courts in this class of cases is well stated in Ruling Case Law, vol. 14, c. IV, pp. 86, 87, §§ 23, 24, and in authorities cited under footnotes 19 and 4, as follows:

"Where one contracts for certain work to be done, and an injury is occasioned to a third person as the direct result of the doing of the work, not as a result of negligent acts of the contractor, the employer is liable for such injury. In other words, he is answerable for injuries which necessarily follow the performance of the...