Safway Scaffold Co. of Houston, Inc. v. Safway Steel Products, Inc.

• Decision Date: 10 August 1978
• Docket Number: No. 17041,17041
• Citation: 570 S.W.2d 225
• Parties: SAFWAY SCAFFOLD CO. OF HOUSTON, INC., Appellant, v. SAFWAY STEEL PRODUCTS, INC., et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 225

570 S.W.2d 225

SAFWAY SCAFFOLD CO. OF HOUSTON, INC., Appellant, v. SAFWAY STEEL PRODUCTS, INC., et al., Appellees.

No. 17041.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Aug. 10, 1978.

Rehearing Denied Sept. 7, 1978.

Martin, Sperry & LeBoeuf, Jack R. Martin, Malcolm Williams, Houston, for appellant.

Fulbright & Jaworski, David J. Beck, G. Mike Lawrence, Houston, for appellee Safway Steel Products, Inc.

Green & Sims, Michael B. Lee, Houston, for appellee Swain Restoration Company, Inc.

PEDEN, Justice.

Appeal by Safway Scaffold Company of Houston, Inc. (Safway Scaffold), original defendant and third-party plaintiff, from a judgment granted in favor of third-party defendants, Safway Steel Products, Inc. (Safway Products) and Swain Restoration Company, Inc. (Swain), on the appellant's claims for indemnity and contribution. Safway Scaffold contends that the trial court erred in directing a verdict against its third-party claims when the original plaintiff rested and before Safway Scaffold had an opportunity to offer any evidence. Safway Scaffold did not appeal from a judgment rendered in favor of plaintiff Cichy based on the jury's verdict. We reverse and remand the trial court's granting of the directed verdicts.

Safway Scaffold leased staging equipment to Swain. Swain's employees, George Cichy and Paul Hale, took it to Galveston, where they were to perform waterproofing work on the exterior of a four-story building. They placed 4 by 4 timbers on the roof, secured them and suspended the swing-type stage from these 4 by 4's by steel cables. The stage was raised up the side of the building by manually operated winches.

On March 29, 1971, Hale and Cichy were working on this stage near the top of the building when the right end of the scaffold slipped, and they fell to the ground. Cichy testified that he "heard something slipping and something snapping and gears clanking, clanking, clanking, clanking, and when I dropped on the ground I don't remember anything after that." What he heard slipping was the cable "the cable was either either slipping and all I could hear was gears and like something was falling apart in the gear box. . . . Like something snapped and gave way."

Cichy sued Safway Scaffold alleging failure to inspect, failure to warn, negligent maintenance of the equipment, strict liability for leasing a product that had been rendered unreasonably dangerous by the defendant's failure to properly maintain, breach of implied warranty, strict liability based on defective design, and Res ipsa loquitur.

Safway Scaffold filed a third-party action against Swain, lessee of the equipment and Cichy's employer, for full indemnity based solely on the express indemnity provision on the back of the "Lease Agreement Contract-Delivery Order" signed by Cichy (a copy was attached to the petition).

Safway Scaffold also filed a third-party action against Safway Products, the manufacturer of the equipment, for indemnity or contribution alleging:

"If the said product was unreasonably dangerous as alleged by Plaintiffs, which is not admitted by this Third Party Plaintiff, then such condition constituted a breach of Third Party Defendant's Warranty to Third Party Plaintiff, inasmuch as Third Party Plaintiff made no substantial change in the condition of the product after purchasing it from Third Party Defendant and Third Party Plaintiff is, therefore, entitled to be indemnified by Third Party Defendant for whatever sum it might ultimately be held liable to Plaintiffs."

"In the alternative, Third Party Plaintiff says that if the above facts and circumstances do not give rise to a right of indemnity in its favor, . . . Third Party Plaintiff is entitled to legal contribution from Third Party Defendant against any judgment which might be rendered against it in favor of Plaintiffs."

At the close of the plaintiff's evidence, Safway Products moved for an instructed verdict, asserting that since the plaintiff had introduced no evidence of defective design, Safway Scaffold's cause for indemnity and contribution failed as a matter of law. Swain moved for an instructed verdict and argued that the indemnity provision on the back of the rental ticket was not clear and unequivocal, that Cichy had no authority to bind Swain, that appellant did not plead apparent authority and that the indemnity provision was inconspicuous. The trial court granted both motions, and appellant stated its objections.

The "Budget Swing" stage in question could not be located for examination by the plaintiff, but pursuant to a discovery order of the court, Safway Scaffold furnished the plaintiff a "Budget Swing Identical to the one made the basis of this lawsuit." (emphasis added). That Budget Swing was examined by a Mr. Meek for an independent testing laboratory, and he was the only expert witness whose testimony was offered by the plaintiff. Since the winch he inspected was not the one that is the subject of this litigation, it had no scored or misaligned or bent parts that would enable him to state positively what caused any failure of the winch. He testified at length, however, about possible causes based on design deficiencies. He pointed out that the primary safety device of the winch is the spring-loaded pawl that keeps the ratchet from unwinding. The spring is anchored only by its one end that is bent at a right angle, and he noted that the one he inspected has slipped out of its engagement hole slightly so that its bent end now extends only nine one-hundredths of an inch into that hole. If it slides further, it may become disengaged and that safety device will fail. The witness also testified that the manual bar that acts as a brake in the cog wheel will bend and become loosely attached in ordinary use and then it can easily miss the safety stop.

Swain argues that there was no evidence that George Cichy had authority to execute the indemnity agreement on behalf of Swain. Paul Swain, the owner of Swain Restoration Company, testified that he did not give Cichy, a superintendent or job supervisor, authority to indemnify Safway Scaffold against any damages sustained. Ordinarily, a person in this type of position cannot bind his employer by signing a broad indemnity contract. Rourke v. Garza, 530 S.W.2d 794, 804 (Tex.1975). Both Paul Swain and George Cichy were cross-examined by appellant, but no evidence of authority was shown.

Appellee Swain also contends that the hold-harmless clause is ineffective because it did not state in unequivocal terms that Swain would indemnify...