S. Blickman, Inc. v. Chilton

• Decision Date: 09 March 1938
• Docket Number: No. 8597.,8597.
• Citation: 114 S.W.2d 646
• Parties: S. BLICKMAN, Inc., v. CHILTON.
• Court: Texas Court of Appeals

114 S.W.2d 646

S. BLICKMAN, Inc., v. CHILTON.

No. 8597.

Court of Civil Appeals of Texas. Austin.

March 9, 1938.

Appeal from District Court, Travis County; Ralph Yarbrough, Judge.

Action by L. B. Chilton against S. Blickman, Inc., to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellant.

Harold M. Oster, of Galveston, for appellee.

BAUGH, Justice.

Appellee sued appellant for damages for personal injuries received by him when the back of a stool chair at the lunch counter of the Stephen F. Austin Hotel, in Austin, Tex., broke and caused him to fall to the floor on January 22, 1935. The cause of action was predicated upon the negligence of the appellant, defendant below, in installing a structurally defective stool chair. Appellant was the contractor who was remodeling these quarters of the hotel at the time. While the hotel was permitting the public to use the chairs being installed, the remodeling work had not been completed, and the hotel had not yet accepted the work under the contract. Trial was to a jury upon special issues, and, based upon their findings thereon, judgment rendered in favor of appellee for $1,470, from which this appeal is prosecuted. Further facts will be stated where pertinent to the issues presented.

In addition to general and special exceptions, a general denial, and plea of settlement not pertinent to this appeal, the appellant defended on the ground that it did not manufacture the stool chairs involved, but that same were the seats called for in the plans and specifications on which bids were made and the contract entered into by the hotel company with appellant; and that the injuries received were attributable to the negligence of the hotel company.

There seems to be no controversy but that the stool chair which broke and caused appellee's injury was structurally defective, as to the extent of appellee's injuries, nor that such injuries resulted from the breaking of the back of the stool chair.

Appellant's first contention is that the chain of causation between the negligence, if any, of the original tort-feasor in installing a defective and dangerous chair, and the injury to the appellee, was broken by the independent and intervening act of the hotel company with knowledge of the dangers involved in inviting the public to use the defective seats, without notifying the appellant of the defect and of the resulting danger.

Numerous cases are cited and reviewed by appellant under this contention. No useful purpose would be served by citing and discussing them here. Much has been written on the relation of an independent contractor in construction work to third parties not privy to the contract. It is now settled that liability for injuries to such third persons must be predicated upon negligence, and not upon any contractual relation. And, when such contract is completed and the work or building accepted by the owner or lessee, the contractor is thereafter generally relieved of liability. 23 Tex.Jur. § 30, p. 578; 14 R.C.L. § 42, p. 107. A full annotation of numerous cases bearing on different phases of this question is found in 38 A.L.R. 403-554. But a different rule applies as to such contractor for negligence resulting in injuries prior to completion and acceptance of work done under the contract. In such case the general rule is that he is liable for his negligence. 23 Tex.Jur. § 29, p. 577; 14 R.C.L. § 41, p. 577; 38 A. L.R. 410 et seq.

The contention of appellant that there was an intervening cause constituting negligence which caused the injury to appellee is not sustainable under the record presented, for two reasons: First, because there was a jury finding, in answer to questions requested by appellant, that the manager of the hotel did not know of the defect in the chair; and, second, that his inviting the public to use them at the time was not negligence. There was sufficient evidence to raise these issues, and the answers of the jury therefore are binding upon appellant.

The next contention made by appellant is that it was not shown that appellant knew of the defective condition of the chair stool, or that in the exercise of ordinary care it should have known of it; and that proof of such knowledge, actual or implied, was necessary to fix liability on appellant. Numerous authorities are cited in support of this rule, stated in 45 C.J. § 332, p. 893. The Texas cases cited in support of this contention, beginning with Graham v. F. W. Woolworth Co., Tex.Civ. App., 277 S.W. 223, the last cited case being Scheps v. La Rose, Tex.Civ.App., 88 S.W.2d 557, 559, relate to the duty of the owner of premises to keep them in a reasonably safe condition for the use of invitees. This rule is stated in 45 C.J. § 245, p. 837. An extensive citation of the authorities in support of it is found in the opinion of the Eastland Court of Civil Appeals in Great A. & P. Tea Co. v. Logan, 33 S.W.2d 470. But the issue here presented is that of the extent of the liability of a manufacturer or contractor furnishing under his contract equipment or articles of defective construction, with full knowledge of the purpose for which they are to be used, and knowing that they would be used by the public.

It was clearly shown that the stool seat in question was structurally defective, in that holes drilled through the bars supporting the back of the seat where same were joined to the seat proper so weakened it as to make it unsafe. The evidence was amply sufficient to sustain the finding that this was negligence, and that this type of stool seat was used at the instance of appellant's agent, and furnished by appellant in fulfilling its contract. The question of whether appellant knew, or should by the exercise of ordinary care have known, of such defect, was not submitted to the jury, nor did appellant request that it be submitted. On the other hand, plaintiff, appellee here, requested in writing that these exact issues be submitted to the jury and the request was refused by the trial court. Appellee in his brief states that such refusal was upon objection of appellant itself to such submission. If, therefore, it was error not to submit such issues, the error was invited by appellant, and it cannot here complain. 3 Tex.Jur. § 731, p. 1031.

Appellant pleaded that it was not the manufacturer of the stool seats in question. It undertook to show that these seats were manufactured by the Durobilt Seat & Stool Company. There was no contention made by it that these seats were manufactured by any one else. While the jury found that said seats were not manufactured by the Durobilt Seat & Stool Company, even if it be conceded that they were so manufactured, such fact was not shown to have been known to the hotel company at the time; and, when the hotel company was induced by appellant's agent to select this type of stool seat for use in its hotel and to enter into its contract with appellant, these articles were represented by appellant as being a "fabrication of their own factory." Whether, therefore, they were in fact manufactured by appellant or not, having furnished them as their own product and so represented them, appellant would be held to the same rule of liability as if it had manufactured them itself. Restatement of the Law of Torts, § 400, p. 1086.

The cases are legion, and not entirely harmonious, on the extent of the liability of a manufacturer to third parties with whom there is no privity of contract, for defective construction of its products. Such liability for its negligence was originally limited in large measure to products which were in themselves inherently dangerous, such as drugs, explosives, etc. This rule of liability, however, has been modified and extended...