Roosth & Genecov Production Co. v. White

• Decision Date: 04 November 1953
• Docket Number: No. A-4176,A-4176
• Parties: ROOSTH & GENECOV PRODUCTION CO., Inc. et al. v. WHITE et al.
• Court: Texas Supreme Court

Page 99

262 S.W.2d 99

152 Tex. 619

ROOSTH & GENECOV PRODUCTION CO., Inc. et al. v. WHITE et al.

No. A-4176.

Supreme Court of Texas.

Nov. 4, 1953.

Rehearing Denied Dec. 2, 1953.

Gladney & Stephen, Henderson, Saunders & Thurmond, Tyler, J. Byron Saunders, Tyler, Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for petitioners.

Waldrop & Shaw, Gordon R. Wellborn, Rex Houston and Bath & Turner, Henderson, Leachman, Matthews & Gardere and Henry D. Akin, Dallas, for respondents.

GARWOOD, Justice.

Our petitioner, Roosth & Genecov Production Company, Inc., defendant below, seeks relief from a judgment (on a verdict) awarding damages to the respondent-plaintiff White for personal injuries incident to the collapse of an oil well drilling derrick, owned by the petitioner-defendant, but actually erected on its leasehold by respondent-defendant, A. M. Sale, under 'independent' contract between these two parties, and in use at the time of the accident by Carter Jones Drilling Company, which was the employer of respondent-plaintiff White and was drilling the well in question under 'independent' contract with petitioner-defendant. The Workmen's Compensation Insurance carrier of the drilling company, as intervenor, participated in White's recovery and occupies the same position as he. The decision of the Texarkana Court of Civil Appeals, affirming the above-mentioned judgment (Williams, Justice, dissenting) is reported in 257 S.W.2d 140, and referred to for a more detailed statement of the facts. It should be noted, however, that the petitioner-defendant did not own the lease but stood virtually in the shoes of the owners under an agreement entrusting the former with full operation and control so far as the owners were concerned.

The first two points on which we granted the writ of error arise via objections of the petitioner-defendant to the special issues (answered unfavorably to it) enquiring whether the petitioner-defendant, 'its agents, servants and employees knew, or, by the use of ordinary care, should have known the condition of the completed derrick as it stood on Curbo No. 17, at the time it was furnished for use in plaintiff's employment'; whether the derrick 'was defective' and 'defective to the extent that it was inherently dangerous'; and whether 'the furnishing of such defective derrick for use in plaintiff's employment' (if found) was negligence and a proximate cause of White's injuries. (The underscoring to the quoted portions of the charge is supplied by us.) The questions thus presented are of both substance and form.

The one of substance involves the words 'or, by the exercise of ordinary care, should have known' in the issue first above quoted, and is posed by the petitioner's contention that under Southern Oil Co. v. Church, 1903, 32 Tex.Civ.App. 325, 74 S.W. 797, 75 S.W. 817, writ of error refused 'the petitioner here owed no duty to White' (being the employee of an independent contractor) 'other than not to intentionally or wilfully endanger him or knowingly furnish him agencies inherently dangerous.' If the quoted proposition is correct, the 'should have known' portion of the charge was unjustified, and, indeed, the state of the evidence may require a rendition of judgment in favor of the petitioner.

The decision mentioned is rather a 'white horse' case, about the only difference between it and the instant case being that in the former it does not appear that the defendant leaseowner caused its defective derrick to be placed on the well site (for use of the drilling contractor) by an independent construction contractor, as did the petitioner in the instant case. The reasons given in the Church case for denying liability were that, notwithstanding the fact of carelessness of the defendant in furnishing a derrick that was dangerously defective, there was no evidence of control by the defendant over the operations of the drilling contractor and no proof that a derrick is 'inherently dangerous,' (that is, dangerous in its normal or non-defective state, like explosives or poisons) which clearly it is not. The facts of the Church case are closer in point than those of the much later decision in Smith v. Henger, 148 Tex. 465, 226 S.W.2d 425, 20 A. L.R.2d 853, on which the respondent-plaintiff greatly relies. Smith v. Henger grew out of the construction of a large building and was clearly a case of dangerous premises (as distinguished from a defective apparatus) with a deep hole or shaft deceptively covered with a mere tarpaulin. The rule there applied to hold the defendant liable to the servant of an 'independent' contractor working on the premises was that the owner or other occupier of the premises as a whole, such as a general contractor, or, in the particular case, a construction supervisor and coordinator acting for the owner, owed the servant the duty not only to warn him of hidden dangers known to the occupier, but also to use ordinary care to ascertain that such dangers existed. The idea of 'inherent danger' was evidently not considered as relevant to the case, and the liability of the defendant was regarded as inconsistent neither with his lack of control over the details of the work of the contractors nor with the further fact that they must have had at least some control over the places at which their respective parts of the work were carried on. The element of 'control' as discussed in Smith v. Henger was not with regard to whether the defendant had usurped the functions or possession of the various contractors, but whether, in view of his peculiar position as a mere supervisor and coordinator for the owner, which itself made all the contracts, he could yet be said to stand in the shoes of the owner, as a general contractor would, with respect to liability as an occupier of the premises.

While as stated, the facts of the Church case are peculiarly similar to those of the instant case, the former is inconsistent with Smith v. Henger, if we but assume that the derrick may be treated as 'premises' or part thereof, and, therefore, the Church case would have to yield. At the time the latter was decided (1903) our 'refusal' of a writ of error did not involve approval of the opinion of the Court of Civil Appeals, so no clear conflict between our own holdings could be said to be involved. Indeed, since the theory of Smith v. Henger was that the defendant in that case owed a duty of due care to furnish a safe place of work to the servants of the contractors because the defendant occupied a position analogous to a general contractor, such a duty is all the more evident in situations like those of the Church case and the instant case, in which the defendant was not a 'supervisor,' but actually made the only contracts appertaining to the well, supplied its own derrick and numerous essential materials and itself undertook performance of various essential tasks incident to the work. If the defendant in Smith v. Henger could be treated as a general contractor, the defendants in the Church and instant cases undoubtedly should be.

And if we concede that it involves too violent an assumption to treat the Church case as one involving the duty of a possessor of premises to an invitee, that decision yet appears to conflict with the more modern rule with reference to liability of a supplier of chattels for personal injury resulting from defects therein. According to the American Law Institute, a duty of inspection to forestall personal injury exists on the part of one who supplies chattels to another for a use in which the supplier has a business interest and extends to the servants of an independent contractor to whom the chattel is supplied. Restatement, Torts, Sec. 392, Comment e, Illustration 1. The fact that an identical duty exists on the part of the independent contractor as master of the servant in question '* * * does not, however, relieve from liability the original supplier of the chattel who by his failure to inspect it has permitted it to go out of his hands in a dangerous condition.' Id. Sec. 393, Comment a. The duty of the supplier is likened to that of an occupier of land to an invitee. Id. Sec. 392, Comment b, p. 1066. The view of the Restatement clearly does not entail the requirement that the chattel in question be an explosive or other 'inherently dangerous' substance or that the work for which it is destined be of an 'inherently dangerous' character, such as blasting. The rule of the Restatement is evidently in accord with the decision of at least several of the older and larger states. See, for example, McGlone v. William Angus, Inc., 248 N.Y. 197, 161 N.E. 469; Gray v. Boston, R. B. & L. R. Co., 261 Mass. 479, 159 N.E. 441.

The Church case has lately been referred to as a 'harsh rule'. Allbritton v. Sunray Oil Corp., D.C., 88 F.Supp. 54, 57, affirmed 5 Cir., 187 F.2d 475. While no doubt it had more support in general authority when it was decided than it has now, we would hardly be disposed to follow it, even aside from Smith v. Henger, supra. The Texas decisions-and, indeed, several of those from other states-cited in the former are in our judgment distinguishable from it on the facts. In the latest of them, Galveston H. & S. A. R. Co. v. Nass, 94 Tex. 255, 258, 59 S.W. 870, 871, the court took note of, but expressly refused to decide, the above discussed question of the duty of inspection on the part of the supplier of a chattel in favor of the servant of another to whom it is supplied. Justice Brown observing that the authorities on the point 'are quite conflicting'.

It could not be validly urged in the instant case that even to disregard the church is not to impose a duty of inspection on the petitioner, since the derrick here was erected (reassembled) on the well site by the erecting contractor Sale. Conceding that such an intervention of an independent contractor might under some circumstances relieve the supplier of a chattel from the duty...