El Paso Laundry Co. v. Gonzales

• Decision Date: 12 March 1931
• Docket Number: No. 2464.,2464.
• Citation: 36 S.W.2d 793
• Parties: EL PASO LAUNDRY CO., Inc., v. GONZALES.
• Court: Texas Court of Appeals

36 S.W.2d 793

EL PASO LAUNDRY CO., Inc., v. GONZALES.

No. 2464.

Court of Civil Appeals of Texas. El Paso.

March 12, 1931.

Rehearing Denied April 2, 1931.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by Pedro Gonzales, Sr., individually and as next friend of Pedro Gonzales, Jr., against the El Paso Laundry Company, Incorporated. Judgment for plaintiff, and defendant appeals.

Affirmed.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

Charles Owen and Henry T. Moore, both of El Paso, for appellee.

PELPHREY, C. J.

This is an appeal from a judgment for damages for personal injuries to Pedro Gonzales, Jr., the sum of $1,500 being awarded to appellee as next friend of Pedro Gonzales, Jr., and $1,136.50 being awarded to appellee for loss of services and medical expenses.

Appellee, Pedro Gonzales, Sr., alleged that on or about July 9, 1929, he was an employee of appellant, who was conducting a laundry business in the city of El Paso, Tex.; that for more than two years prior to said date it had been the custom of his son, Pedro Gonzales, Jr., to come upon the premises of appellant for the purpose of bringing appellee his lunch at noon and his supper in the evening and for the purpose of assisting appellee in the performance of his work and duties for appellant; that during times when Pedro, Jr., was attending school, it had been his custom to come upon the premises after school for the purpose of assisting his father in his work; that such conduct and custom of Pedro, Jr., was well known to appellant and its officers and agents long prior to July 9, 1929; that appellant and its officers and agents had confirmed, acquiesced in, approved, and allowed such custom and conduct of Pedro, Jr., without objection; that such conduct and custom was to the interest and accrued to the benefit of appellant and its employees; that appellant's long acquiescence therein constituted and was an invitation to Pedro, Jr., to come upon the premises, and that by virtue thereof appellant owed Pedro, Jr., the duty not to willfully and wantonly injure him and also to use ordinary care for his safety and protection; that on or about the date above mentioned, while Pedro, Jr., was on the premises of appellant for the purpose of bringing Pedro, Sr., his lunch and assisting him with his work, one of appellant's employees negligently, recklessly, and carelessly opened one of appellant's machines known as an "extractor," while it was in operation and while Pedro, Jr., was in close proximity thereto; that Pedro, Jr., in attempting to move away from the machine slipped on a spot covered with oil and fell into the uncovered machine, crushing his right arm to such an extent as necessitated its amputation between the elbow and shoulder; that the machine was defective and dangerous, in that it leaked great quantities of oil onto the cement floor, thereby causing it to be unusually slippery; that this condition was known to appellant, its officers and employees, for a period of time prior to the date alleged; and that appellant's employee, knowing of the slippery condition of the floor, recklessly, carelessly, and negligently uncovered the machine without warning Pedro, Jr., of his intention and without affording Pedro, Jr., an opportunity to move from the position of danger.

Appellant filed a general demurrer and general denial, and further pleaded assumed risk on the part of Pedro, Sr.; that, under the facts and circumstances surrounding his presence on the premises, Pedro, Jr., was an employee of appellant and must recover, if at all, under the Compensation Act; and that Pedro, Jr., was guilty of contributory negligence.

The jury, in answer to special issues, found that it was negligence for appellant's employee to open the extractor while it was in motion and while Pedro, Jr., was standing where he was; that such negligence was a proximate cause of the injury; that Pedro, Jr., was not an employee of appellant at the time of the injury; that Pedro, Jr., did not put his hand into the extractor voluntarily or negligently; that he was not negligent in being where he was at the time of the accident; and that Pedro, Sr., was not negligent in permitting Pedro, Jr., to be where he was at the time of the accident.

Opinion.

Appellant contends that the court should have instructed a verdict in its favor because: (1) That the evidence showing that Pedro, Jr., was familiar with the method of operation and the attendant danger, and having been instructed how to avoid it, and that appellant's servant having requested him to get back from the machine before it was opened, in the absence of any circumstances suggesting an impending accident, was not guilty of negligence; (2) that if such opening of the machine was negligent, it was not the proximate cause of the injury; (3) that the evidence showing that Pedro, Jr., was on the premises, in the care and custody of Pedro, Sr., acting under his direct instructions, his presence being merely tolerated by the officers of appellant, Pedro, Sr., having introduced his son to the dangers, which he knew to exist, was alone responsible for the resulting injury; (4) that, under the facts, Pedro, Jr., was only a volunteer and as such could not recover; and (5) that, if not a volunteer, he was then an employee and must recover under the Workmen's Compensation Act (Vernon's Ann. Civ. St. art. 8306 et seq.); and that the court erred in submitting any ground of recovery on the part of Pedro, Sr., because, with full knowledge of the dangers, he carried his son into the workroom and, as far as his rights were concerned, assumed the risk of injury to him.

The first question which we will consider is as to the status of Pedro, Jr., on the premises. If he was, as contended by appellant, a mere volunteer there, he could not recover for an injury resulting from the negligence of an employee of appellant. Mayton v. Railway, 63 Tex. 77, 51 Am. Rep. 637; Bonner & Eddy v. Bryant, 79 Tex. 540, 15 S. W. 491, 23 Am. St. Rep. 361. But if, as argued by appellee, he was an invitee, then appellant owed him the duty of exercising reasonable or ordinary care for his safety and would be liable for a breach of such duty. 45 C. J. pp. 823, 824; Texas & P. Ry. Co. v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146; Waters-Pierce Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170 (writ denied); Flippen-Prather Realty Co. v. Mather (Tex. Civ. App.) 207 S. W. 121; Moreman Gin Co. v. Brown (Tex. Civ. App.) 291 S. W. 946.

Appellant makes the further contention that Pedro, Jr., was, at the time of the injury, its employee and must recover, if at all, under the provisions of the Compensation Act.

The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall...