Sid Katz v. Walsh & Burney Co.

• Decision Date: 05 January 1944
• Docket Number: No. 8149.,8149.
• Citation: 177 S.W.2d 49
• Parties: SID KATZ, Inc., v. WALSH & BURNEY CO. et al.
• Court: Texas Supreme Court

Page 49

177 S.W.2d 49

SID KATZ, Inc., v. WALSH & BURNEY CO. et al.

No. 8149.

Supreme Court of Texas.

January 5, 1944.

Rehearing Denied February 9, 1944.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by the Aetna Casualty & Surety Company, in the name of Sid Katz, Inc., against Walsh & Burney Company and American District Telegraph Company of Texas to recover for damage to the stock of goods of Sid Katz, Inc. The defendants impleaded Joske Brothers Company and the Jud Plumbing & Heating Company, and prayed for a judgment over against them. A judgment, in so far as it granted a recovery against defendant American District Telegraph Company of Texas, was reversed by the Court of Civil Appeals, 171 S.W.2d 502, and judgment was rendered that plaintiff should take nothing as against such defendant, and that such defendant should recover its costs in Court of Civil Appeals and the court below, and the plaintiff brings error.

Judgment of Court of Civil Appeals, in so far as it reversed judgment of trial court, reversed, and judgment of trial court affirmed.

Johnson & Rogers and Nat L. Hardy, of San Antonio, for Sid Katz, Inc.

Francis R. Stark, of New York City, Henry B. Dielmann, and Goeth, Webb & Goeth, all of San Antonio, for American District Telegraph Co.

Arnold & Cozby, of San Antonio, for Walsh & Burney.

Denman, Franklin & Denman, of San Antonio, for Joske Bros.

Eskridge & Groce, of San Antonio, for Jud Plumbing & Heating Co.

SHARP, Justice.

The Aetna Casualty & Surety Company, in the name of Sid Katz, Inc., sued the American District Telegraph Company and Walsh & Burney for negligence in allowing water to escape from a sprinkler system and damage a stock of goods belonging to Sid Katz, Inc. Walsh & Burney, after denying liability, sought to recover over against the American District Telegraph Company, and the American District Telegraph Company sought a recovery over against Walsh & Burney, Joske Bros. Company, and Jud Plumbing & Heating, Inc. In a trial without a jury, plaintiff recovered a judgment against the American District Telegraph Company, but was denied a recovery against Walsh & Burney, and the American District Telegraph Company was denied a recovery over against any of the parties. Upon appeal, the judgment was reversed and rendered by the Court of Civil Appeals at San Antonio, in so far as it granted a recovery against the American District Telegraph Company, but in all other respects was affirmed, upon the ground that its employee, H. C. Staats, was not acting in the scope of his employment in performing the act complained of. 171 S.W.2d 502.

Joske Bros. Company will be hereinafter referred to as Joske, and the American District Telegraph Company as Telegraph Company.

The main facts are as follows: Joske's store in San Antonio occupied two buildings, the more northerly of which was known as the Conroy Building. For protection against fire both buildings were equipped with an automatic sprinkler system, with attached electrical warning devices, which was operated by the Telegraph Company under a contract with Joske. Walsh & Burney entered into a contract with Joske to demolish the Conroy Building and to erect a new building in its place. As a part of the transaction the old structure and the fixtures were sold to Walsh & Burney for salvage. In an attempt to exclude the public from the premises, Walsh & Burney constructed a temporary wall between the main Joske building and the Conroy Building, and another wall which enclosed the remaining three sides of the Conroy Building.

In the course of disconnecting that part of the sprinkler system in the Conroy Building from the remainder of the system, Joske's general maintenance man forced a defect in a cut-off valve, causing a slow leak through the valve. The water which leaked through the valve was carried off by a drain pipe, and caused no damage. There were five main pipes, or risers, serving the sprinkler system in the main building, and riser No. 6 and the defective valve were in the basement of the Conroy Building. Walsh & Burney had knowledge of the defective condition of the valve through its employee, who was with Joske's man at the time that the valve was broken.

In the early morning of January 22, 1939, an alarm was received in the office of the Telegraph Company which indicated that there was trouble on either riser No. 4 or riser No. 5 of the Joske system. H. C. Staats, an employee of the Telegraph Company, whose duty was to answer such alarms and to reset the alarm mechanism, was dispatched to Joske's store to ascertain the trouble. He found nothing wrong with any of the risers in the main building, and upon hearing a whispering sound as of water escaping in the Conroy Building, he and Joske's watchman obtained entrance into the Conroy Building by means of a freight elevator. The Telegraph Company had an instrument board fastened to the wall in the basement of the Conroy Building a few feet from the valve on riser No. 6, but the device had been disconnected from riser No. 6. The Telegraph Company had posted a notice on its bulletin board to the effect that the instrument board had been disconnected from riser No. 6, and that the Telegraph Company had no further jurisdiction over the Conroy Building. Staats testified that he had read the notice. When Staats entered the basement of the Conroy Building, he noticed that water was leaking through the cut-off valve. Not knowing of the defective condition of the valve, Staats attempted to close it, and in doing so he released the full flow of the water from riser No. 6. The water flowed into a basement where Sid Katz, Inc., had its stock of merchandise, and damaged it to the extent of $2,688.00. Sid Katz, Inc., was indemnified for its loss by its insurer, who brought this suit, in the name of Sid...