Standard Accident Ins. Co. v. Pennsylvania Car Co.

• Decision Date: 08 March 1933
• Docket Number: No. 6621.,6621.
• Citation: 63 F.2d 444
• Parties: STANDARD ACCIDENT INS. CO. v. PENNSYLVANIA CAR CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

63 F.2d 444 (1933)

STANDARD ACCIDENT INS. CO. v. PENNSYLVANIA CAR CO. et al.

No. 6621.

Circuit Court of Appeals, Fifth Circuit.

February 13, 1933.

Rehearing Denied March 8, 1933.

J. Cleo Thompson and John White, both of Dallas, Tex., for appellant.

James P. Swift, of Dallas, Tex., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Plaintiff, an insurance carrier, alleging that it had paid compensation on account of the death of Zack Smith, deceased, and that the death occurred under circumstances "creating a legal liability in" defendant, sued to enforce its statutory right to subrogation to Smith's cause of action (Rev. St. Tex. 1925, art. 8307, § 6a). This is the second appeal. The first appeal was from a judgment on demurrer dismissing the cause for the insufficiency of the petition. (C. C. A.) 49 F.(2d) 73. On that appeal the position taken was not that the petition was defective in failing to show negligence on the part of defendant, but that the negligence alleged was that of a servant of the general contractor, and therefore not actionable under the statute. It was argued that since the duty to furnish protective flooring was a nondelegable one, there could be no independent contract about it. On that appeal, we, on full consideration, rejected this view. We held that defendant was not an agent, servant, or employee of the general contractor for whose negligence the employees or subscribers could have no action, but that it was an independent contractor, and liable to Smith for its negligence in the premises. We reversed the cause for trial on its merits. 49 F.(2d) 73.

On this trial plaintiff stood on the same pleading. At the close of plaintiff's evidence, which conformed to its pleading, the District Judge, notwithstanding our holding on the former appeal that the petition stated a cause of action, instructed a verdict for defendant. He thought that plaintiff's suit was on the contract which defendant had made with the general contractor to provide for him the protective flooring which the statute required (Rev. St. Tex. 1925, art. 5182). He held that defendant was not liable to plaintiff on the contract, and, further, that since the statute imposed the duty upon the general contractor to provide protective flooring, defendant was under no legal duty to the plaintiff either to provide the flooring or to avoid injuring plaintiff by letting materials with which its men were working fall on him...