T. J. Mansfield Const. Co. v. Gorsline

• Decision Date: 16 March 1927
• Docket Number: (Motion No. 7408; No. 665-4549).
• Parties: T. J. MANSFIELD CONST. CO. v. GORSLINE et al.
• Court: Texas Supreme Court

292 S.W. 187

T. J. MANSFIELD CONST. CO. v. GORSLINE et al.

(Motion No. 7408; No. 665-4549).

Commission of Appeals of Texas, Section B.

March 16, 1927.

On motion for rehearing. Motion overruled.

For former opinion, see 288 S. W. 1067.

Fitzgerald & Hatchitt, of Wichita Falls, for plaintiff in error.

Edgar Scurry and Bullington, Boone, Humphrey & King, all of Wichita Falls, for defendants in error.

SHORT, J.

The defendants in error in their motion for rehearing submit four grounds as reasons why the motion should be granted, two of which assail our conclusion that the accident occurred at culvert No. 2; whereas, the Court of Civil Appeals sustained the finding of fact that it occurred at culvert No. 3. In support of this contention they submit the legal proposition that the Supreme Court is bound by the decision of the Court of Civil Appeals in its findings of fact where there is evidence of substantial nature to support this finding. We fully agree with this contention as a correct legal proposition. Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030. Many other decisions reach the same conclusion, and it is no longer an open question in this state. However, a reference to the original opinion in this case, reported in 288 S. W. 1067, shows that we held that this question of fact was not material to a decision of the case, and therefore whether we were correct or not in our conclusion is of no consequence. The testimony shows that only one culvert was uncovered and that the accident occurred at this particular culvert without regard to its numbering or location.

The third ground of the motion challenges the correctness of our opinion upon the ground that the undisputed evidence in the case showed that the defendants in error were injured by reason of the act of the plaintiff in error in placing said road in a hazardous and dangerous condition, and asserting that the plaintiff in error could not be excused for negligently injuring the defendants in error because it had a contract with Wichita county under which the county had agreed upon the completion of the culverts to place the road back in a reasonably safe condition. The defendants in error also assert that we have misconstrued the character of their cause of action which they claim to be a tort, and with which contention as to the character of the cause of action we agree. A "tort" consists in the violation of a right given or the omission of a duty imposed by law. 38 Cyc. 426. If the plaintiff in error is liable to the defendants in error upon the cause of action alleged, then its employer, Wichita county, would not be liable even though it was suable for damages resulting from this character of action. An employer is not liable to third persons for the omission or misconduct of a contractor, selected with proper care, who retains independence of control in employing workmen and in selecting the means of doing the work. This is a general rule of non-liability, but is subject to certain exceptions, among which is the following: Where the employer accepts the work while in a dangerous state and permits it to remain so, and the injury results from its condition. Donovan v. Oakland & B. Rapid Transit Co., 102 Cal. 245, 36 P. 516.

The defendants in error cite the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, as sustaining their position that this ground in the motion should be sustained. We say in the original opinion:

"An essential element of negligence is a duty; if there is no duty there can be no negligence. To constitute negligence there must appear a duty on the part of the plaintiff in error to the party injured and legal nonperformance of that duty."

In the Fox Case, Justice Greenwood, speaking for the Supreme Court, uses this language:

"Upon defendant in error taking over the control and repair of the elevators, to promote its own interests, it became charged with the duty, declared in the instructions of ...