"(1) At all the times hereinafter mentioned, the Northern Texas Traction Company was a corporation engaged in the business of operating street cars over the streets of the city of Ft. Worth, including Main street, as well as interurban cars over the same, passing from Ft. Worth to Dallas, and for both its urban and interurban cars held franchises from the city of Ft. Worth to operate the same over Main street, containing provisions requiring said Northern Texas Traction Company to pave and repave so much of Main street as lay between its rails in its double line of street railway track over said street, and for 18 inches on the outside thereof, with such material and like material as the city might from time to time determine and direct the paving of the remainder of said street, and to do the same according to the specifications furnished therefor by said city.
"The defendant being a corporation organized for, and engaged in the business of, writing all forms of liability and accident insurance.
"Prior to September, 1916, the city of Ft. Worth, by appropriate ordinances, directed and entered upon the work of repaving Main street, prescribing and making public plans and specifications therefor, which are unnecessary to incorporate here, and requiring, by likewise appropriate ordinances, the Northern Texas Traction Company to comply with said paving specifications, at its own cost and expense, for so much of Main street, in the said city of Ft. Worth, as was occupied by its double tracks laid thereon, and for eighteen inches on the outside of the rails thereof. The specifications for this paving required the Northern Texas Traction Company to excavate the place at which it was required to pave to a considerable depth below the normal grade of said street, and lay a foundation of some character of concrete mixture, and being from such foundation a strip of concrete mixture to a sufficient height whereupon to lay its iron rails over which its cars were to be transported, to the end that when the iron rails would be flush with the completed surface of the finished pavement of the street, and between the same, for the entire distance which the company was required to pave (as well as the balance of the street), such specifications required a bed of sand to be laid on the concrete base, on which should be placed said wooden blocks, cemented together with some character of pitch, and rolled and tapped to an even surface, constituting the finished surface of the street.
"Prior to September the Traction Company entered upon the performance of this work according to such specifications, and in performing the same, and under terms of a general contract or arrangement with the Stone & Webster Engineering Corporation, the latter conducted said work for the Northern Texas Traction Company as engineers or supervisors, receiving a fixed consideration therefor, and acted in the performance of all such work as the agents of the Northern Texas Traction Company. (The general contract existing between the Northern Texas Traction Company and the Stone & Webster Engineering Corporation is hereto attached and made a part hereof, marked `Exhibit A.') During the progress of this work, and prior to the 13th of September, the Northern Texas Traction Company, through the Stone & Webster Engineering Corporation, asked for bids from construction concerns for the laying of wooden blocks required in the pavement, furnishing all material except the asphalt filler, from the South Line of Weatherford street, according to the specifications above referred to, approximately 1,460 square yards.
"The bid for said work by H. K. McCollum of Ft. Worth, Texas, was accepted, and the latter entered upon said work of laying wooden blocks, and furnished all material therefor for the agreed consideration of $2.14 per square yard. The memoranda passing between the Northern Texas Traction Company, acting through Stone & Webster Engineering Corporation agents, and H. K. McCollum, covering the work above referred to, is hereto attached and marked Exhibit `B.' During all the performance of said work by McCollum the same was inspected all the while by the Northern Texas Traction Company through its agents, Stone & Webster Engineering Corporation, and completed sections received by it and paid for by said Northern Texas Traction Company.
"(3) On the 11th day of February, 1916, the defendant Ocean Accident & Guarantee Corporation, Limited, executed and delivered to the Stone & Webster Engineering Corporation three contracts mentioned and described in the plaintiff's petition, which three contracts named the Northern Texas Traction Company among the concerns insured by same, and said contracts are made a part hereof, and marked `Exhibits
C, D, E,' filed herewith, and all premiums were paid on said policies, and the same were all in force on the 13th day of September, 1916.
"(4) On the 13th day of September, 1916, one Charles Maher was engaged at work laying said blocks and finishing the paving on Main street between the rails of the Traction Company tracks, and for eighteen inches on the outside thereof, according to the specifications aforesaid on Main street, near the intersection thereof with Ninth street, and was seriously injured in the following manner:
"Maher, together with two other men, was engaged in moving back and forth across said paving blocks, after they had been set on the sand and the material poured between them, a large and heavy cement roller, designed and used for the purpose of giving said blocks a firm and durable seating on the sand foundation beneath them, and bring the same to a smooth and even surface on top, and while so engaged on said 13th day of September, 1916, operating said roller across said tracks and on said tracks, they were constantly moving the same back and forth in leaving the way for the interurban and urban cars of the repass on said lines of double tracks, the operation of said Traction Company's cars never having been at any time suspended or impeded during the progress of the work. An interurban car was passing the scene of the work going south, and Maher and his colaborer moved the roller to what was supposed to be a safe distance from the passing car, but before the car entirely passed the roller the same came in contact with the interurban car and Maher received his serious injury. The defendant company was notified of the accident, and the requirements of the policy in that particular complied with, but the defendant declined to take charge of the claim, or to recognize any obligation to protect the same. Maher brought suit against the Northern Texas Traction Company for the accident, and his claim was settled by the payment to him of $6,000 on the 12th of June, 1917. The cost and expenses of the Traction Company in addition to the cost of attorney's fees for defending the suit, but including other expenses of immediate medical aid, etc., amount to the sum of $1.227.92.
"(5) It is agreed that Maher's injuries were very serious, and that the settlement by compromise at $6,000, and the payment of that amount to him by the Northern Texas Traction Company in settlement of his alleged cause of action, was an advantageous disposition of the matter, both to the Northern Texas Traction Company, as well as to the said Ocean Accident & Guarantee Corporation, if it should be held liable, and no point is made by the defendant that such compromise was not a reasonable settlement of the Northern Texas Traction Company's liability to Maher.
"(6) Charles Maher was employed and put to work on the job in question, and was at work at the time he was injured in the manner as hereinabove related, under employment by McCollum, who likewise was paying him by the day; and he had been at work for some days prior to the time he was injured.
"(7) During the time that Maher was at work on this job in the manner and form as above related, during the time McCollum was carrying out his contract, and at the point where Maher was hurt and elsewhere over Main street, the cars, urban and interurban, were passing back and forth over said line of double tracks almost momentarily, the operation of none of said cars being suspended during the performance of the work.
"(8) After the defendant declined to take charge of Maher's claim against the Northern Texas Traction Company and to defend the suit which he brought, and at its cost and expense, the Traction Company caused the same to be defended by its counsel, Capps, Cantey, Hanger & Short, to whom it paid an annual salary, and it, the Northern Texas Traction Company, never contracted nor paid to Capps, Cantey, Hanger & Short any extra compensation for defending said suit so brought by Maher, which was compromised as hereinabove stated.
"(9) The sum of $750 is here agreed upon as a reasonable attorneys' fee for the prosecution of this suit on the part of the plaintiff, in the event the statutes of the state awarding twelve per cent. damages and...
