Sira & Payne, Inc. v. Wallace & Riddle, 17665
| Decision Date | 30 July 1971 |
| Docket Number | No. 17665,17665 |
| Citation | 470 S.W.2d 793 |
| Parties | SIRA & PAYNE, INC., Appellant, v. WALLACE & RIDDLE, a Partnership, Appellee. |
| Court | Texas Court of Appeals |
Patrick F. McGowan, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
Robert W. Finklea, Finklea & Finklea, Dallas, for appellee.
The appellant Sira & Payne, Inc., being under a contract with the State of Texas to construct a highway in Bowie County, subcontracted to appellee Wallace & Riddle the work of excavating ditches. Tommie McDonald, an employee of appellee, was seriously injured when a ditch being excavated collapsed on him. The employee sued appellant and the case was later settled for $49,500. Appellant sued appellee seeking indemnity for the sum paid in settlement and expenses. Both parties filed motions for summary judgment. The court overruled appellant's motion and granted that of appellee. We affirm.
The subcontract contained the following two paragraphs:
'II
Subcontractor agrees to indemnify and hold Contractor harmless from any and all costs or damages arising out of any wrongs or injuries for damages, either real or asserted, claimed against Contractor that may be occasioned by the negligence or fault of Subcontractor, its agents, servants or employees.
'III
Subcontractor shall carry, pay for and maintain in force continuously during the life of this subcontract, workmen's compensation insurance, contractor's public liability insurance and automobile public liability insurance, with limits satisfactory and in companies acceptable to Contractor. * * *'
It appears from the undisputed summary judgment evidence that appellee carried workmen's compensation insurance in American Mutual Liability Insurance Company which paid the injured employee, Tommie McDonald, a substantial sum and paid substantial medical expenses. That company then joined McDonald in a suit in the District Court of Bowie County, Texas against appellant and its superintendent, Foy Wardell, alleging numerous acts of negligence of appellant, several of which were based upon its alleged responsibility arising out of alleged negligent acts of appellee. Appellant tendered the defense thereof to appellee, but appellee refused to defend. The suit was tried and after verdict the District Judge of Bowie County set aside the verdict on his own motion. Thereafter, appellant paid the $49,500 in settlement.
The first question posed by this appeal is whether under these circumstances appellee was entitled to judgment in its favor as a matter of law; i.e., whether the above quoted indemnity agreement failed to obligate appellee 'to pay indirectly when no liability existed to pay directly.' West Texas Utilities Co. v. Renner, 53 S.W.2d 451, 456 (Tex.Com.App.1932, holdings app'd).
This case is controlled, we believe, by the opinion of the Supreme Court in City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.Sup.1969). In that case Texas Tower & Construction Company had a written contract with the City to repair its water tank. Graham, an employee of the contractor, fell and was seriously injured. He sued the City, which filed a third party action against ...
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Sira & Payne, Inc. v. Wallace & Riddle
...and decreed that plaintiff take nothing and that the defendant recover all costs of the suit. The court of civil appeals affirmed. 470 S.W.2d 793. We reverse the judgments of the courts below and remand the case for a conventional The summary judgment proofs disclose that Sira & Payne, bein......