Standard Acc. Ins. Co. v. Pennsylvania Car Co.
| Decision Date | 21 March 1929 |
| Docket Number | (No. 785.) |
| Citation | 15 S.W.2d 1081 |
| Parties | STANDARD ACC. INS. CO. v. PENNSYLVANIA CAR CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Towne Young, Judge.
Action by the Standard Accident Insurance Company, for itself and for the use and benefit of the surviving wife and minor son of Zach Smith, deceased, against the Pennsylvania Car Company and others. Plea of privilege of one of defendants sustained, and entire cause as to all defendants ordered transferred to Harris county, and plaintiff excepts. Reversed and remanded, with directions.
J. Cleo Thompson and W. I. Gamewell, both of Dallas, for appellant.
Leake, Henry, Wozencraft & Frank, of Dallas, for appellees.
This appeal is prosecuted from an order of the district court of Dallas county, sustaining a plea of privilege. Appellant, Standard Accident Insurance Company, for itself and for the use and benefit of the surviving wife and minor son of Zach Smith, deceased, sued appellees, Pennsylvania Car Company, Petroleum Iron Works Company, and H. R. Peterson, to recover damages for the death of said Zach Smith.
Appellant alleged that said car company was a foreign corporation, authorized to do business in this state, and that it maintained an office and had agents in Harris county; that said iron works company was also a foreign corporation, authorized to do business in this state, and that it maintained an office and had an agent in Harris county; that said Peterson resided in Jefferson county. Appellant further alleged that said car company was on or about the 25th day of August, 1926, engaged in furnishing and erecting in place the structural steel for a building in the course of construction known as the Dallas National Bank Building, and situated in Dallas county; that said Peterson was employed and working thereon for and on behalf of said car company, and that said car company was an independent contractor; that it had employed in said work on said building a large number of other artisans, mechanics, servants, and laborers; that each and all the same were under the control and management of said company; that said company and said Peterson were then and there in exclusive possession, control, and management of all of said structure on and above the second floor thereof. Appellant in that connection also alleged in general terms that said Peterson was a subcontractor of said company.
Appellant further alleged that the Henger & Chambers Company was an independent contractor on said building, and had divers and sundry employés at work on the first floor thereof; that the deceased, Zach Smith, was one of its said employés; that, while said car company and said Peterson were carrying on and prosecuting their work on said building, they negligently, carelessly, and recklessly caused and permitted a large piece of lumber 4 inches square and 4 feet 6 inches long, weighing about 50 pounds, to fall from some of said stories of said building under their control; that the same struck said Zach Smith on his head, crushed his skull, and caused his death. Appellant further alleged that said Henger & Chambers Company carried workmen's compensation insurance, and that appellant was its insurance carrier; that appellant had paid compensation to the surviving wife and minor son of the deceased Zach Smith. Appellant, for cause of action against said iron works company, alleged that it had purchased all the assets of said car company and had assumed and promised to pay all its liabilities. Appellant prayed for recovery of damages against appellees, jointly and severally, for the death of said Smith in the sum of $20,000, to be applied to reimburse it for the compensation paid by it on account of the death of said Smith, together with the reasonable cost of such recovery, and any excess thereof to be paid to said surviving wife and minor child of the deceased.
Said corporations each filed an answer to the merits. Said Peterson filed a plea of privilege in statutory form, and asked that the cause be transferred to Harris county, in which county he alleged he resided and had his domicile. Appellant controverted said plea. In its controverting affidavit appellant alleged that said piece of lumber which struck and killed the deceased, Zach Smith, was caused and permitted to fall from premises controlled by said Peterson, by reason of active negligence of said Peterson, his agents, and employés, and that the same constituted a trespass within the meaning of subdivision 9 of article 1995 of our Revised Statutes, which article prescribes the venue of suits.
There was a hearing before the court on said plea and controverting affidavit. Said Peterson was examined as a witness. He testified that he was a subcontractor in the erection of the steel work on said building, and that the foreman and all the workmen thereon were in his employ. He further testified that he was out of the city at the time of the accident. He also testified that he and his foreman were employed by said car company, and were being paid regular salaries by it at the time; that there was a loss on said work, and that said car company bore such loss. There was no evidence introduced showing or tending to show where said piece of lumber was located at the time it fell, what caused such fall, or anything else in connection therewith.
The court, after finding that said Peterson resided in Harris county, made the following additional findings of fact: "I find that the evidence does not disclose any active negligence on the part of either of the defendants which occasioned the injury sued for by the plaintiff in this case." Upon such findings the court sustained said plea and ordered the entire cause as to all the defendants therein transferred to Harris county. Appellant excepted, and presents said proceedings to this court for review.
Opinion.Appellant presents as error requiring...
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