Shade v. Anderson

• Decision Date: 14 March 1931
• Docket Number: No. 12438.,12438.
• Citation: 36 S.W.2d 1041
• Parties: SHADE v. ANDERSON et al.
• Court: Texas Court of Appeals

Page 1041

36 S.W.2d 1041

SHADE v. ANDERSON et al.

No. 12438.

Court of Civil Appeals of Texas. Fort Worth.

March 14, 1931.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by Fred E. Shade against A. A. Anderson and others. From a judgment denying plaintiff recovery against some of the defendants, plaintiff appeals.

Affirmed.

John B. Rhea and Robert Carswell, both of Wichita Falls, for appellant.

Kay & Akin, of Wichita Falls, for appellees.

DUNKLIN, J.

A. A. Anderson entered into a written contract with the state of Texas, represented by the state game, fish, and oyster commissioners, to construct a duplex superintendent's residence in Archer county in accordance with the provisions of the State Statutes and according to the specifications and plans annexed to and made a part of the contract. At the time the contract was entered into, Anderson also furnished and delivered to one of the commissioners a bond, which will be hereinafter set out.

Fred E. Shade was employed by Anderson's foreman and representative as a carpenter to do certain work on the building, and, while engaged in that service, he sustained an injury, and this suit was instituted by him to recover damages for that injury.

The suit was against A. A. Anderson, who it was alleged executed the bond as principal, and Harry Shack, W. T. Martin, J. W. Norwood, H. B. Hines, and G. W. Norwood, as sureties on the bond. A claim of liability against all of the defendants was based upon the terms of that bond.

It was further alleged, in substance, that, independently of the bond, the defendant Anderson was liable to the plaintiff for damages as a result of the injuries sustained by the plaintiff by reason of the fact that plaintiff was injured as the result of the negligence of one of Anderson's employees and while plaintiff was working on the building as a carpenter under an employment by Anderson. The charge of negligence was based upon allegations in substance that, while plaintiff was working at the front and side of the house, cutting in a door frame, a piece of building timber three feet long, two inches thick, and four inches wide fell from the roof of the house, striking plaintiff's head and severely injuring him, that the piece of timber had been negligently and carelessly left on the roof without securing it, by one of Anderson's employees, and that the employee so leaving it knew or should have known, in the exercise of ordinary care, that the piece of timber would likely fall from the roof and endanger the safety of employees working around the side of the house, as plaintiff was working when he was injured, and that plaintiff did not know of its presence on the roof until it had fallen and struck him on the forehead.

In answer to special issues, the jury found that plaintiff sustained the injury alleged in his petition, including paralysis of one of his sides; that the same was caused by the negligence of one of the defendant Anderson's employees; that such negligence was the proximate cause of plaintiff's injury; and that the sum of $3,750 would be a reasonable compensation for the injuries which plaintiff sustained.

Judgment was rendered in plaintiff's favor against the defendant Anderson for the sum of $3,750, the amount assessed by the jury, but denying plaintiff any recovery against the other defendants, to wit, Harry Shack, J. W. Norwood, H. B. Hines, W. T. Martin, and G. W. Norwood. It further appears from the judgment that plaintiff had already taken a nonsuit as to defendants Harry Shack and J. W. Norwood. From a denial of recovery against the other sureties, plaintiff appeals.

Article 5160 of the Revised Statutes of 1925 reads as follows: "Any person, firm, or corporation entering into a formal contract with this State or its counties or school districts or other subdivisions thereof or any municipality therein for the construction of any public building, or the prosecution and completion of any public work, shall be required, before commencing such work, to execute the usual penal bond, with the additional obligation that such contractor shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract. Any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the State or any municipality on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claims and judgment of the State or municipality. If the full amount of the liability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due the State or municipality, the remainder shall be distributed pro rata among said intervenors."

Article 5161 gives the right to a creditor of the contractor to institute suit on the bond in the absence of any suit by the payee of the bond.

Following is the bond introduced in evidence by the plaintiff as the bond sued on:

"Know all men by these presents:

"That I, A. A. Anderson, of Wichita County, and the State of Texas, as principal, and H. B. Hines and J. W. Norwood, of Wichita County, and State of Texas, as surety, are held and firmly bound unto the State of Texas, and twenty five represented by the Game, Fish and Oyster Commissioner, in the penal sum of Two Thousand Seven Hundred ($2,700.00) Dollars, lawful money of the United States, to be paid to the said State of Texas, for which sums of money well and truly to be paid, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.

"Sealed with our seals and dated this 1st day of October, A. D. 1927.

"The condition of this obligation is such that if the said bounden principal, A. A. Anderson, shall in all things well and truly perform all the terms and conditions of the foregoing contract, to be by him performed, and within the time therein mentioned, and shall pay all lawful claims for labor performed and material furnished in and about the construction of said house, and shall have paid and discharged all liabilities for...