Taff v. SINGER SEWING MACHINE COMPANY
| Citation | 331 F.2d 405 |
| Decision Date | 14 April 1964 |
| Docket Number | No. 20710.,20710. |
| Parties | Clinton W. TAFF, Appellant, v. SINGER SEWING MACHINE COMPANY, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Eugene L. Smith, B. W. Cruce, Jr., Burnett & Cruce, Dallas, Tex., for appellant.
Mark G. Pool, Dallas, Tex., for appellee, Strasburger, Price, Kelton, Miller & Martin, Dallas, Tex., of counsel.
Before HUTCHESON and BROWN, Circuit Judges, and CHRISTENBERRY, District Judge.
The only issue raised by this appeal is whether the District Court erred in granting appellee's motion for summary judgment on the basis of the record before it. We find that there remain controverted issues of material fact, and, accordingly, reverse.
This action arises from injuries sustained by appellant during the performance of his employment duties. Under Texas law, an employee is allowed to sue his employer in tort for injuries caused by the employer's negligence, if the employer while eligible to subscribe to the Texas Workmen's Compensation system has chosen not to do so. In such case, a defendant employer is deprived of the traditional common law defenses of contributory negligence, assumed risk, and the follow-servant rule. Texas Revised Civil Statutes, Article 8306, Section 1. This is such a case.
For the purposes of this appeal, the following facts may be considered to have been established by the evidence:
Appellant Taff was employed by Singer Sewing Machine Company as a sales representative. His duties consisted of selling, picking up, delivering and repairing sewing machines, collecting payments, and performing other tasks necessary to the operation of the business. On February 5, 1962, Taff and one Fortenberry, a superior employee, in the course of their duties, delivered a new console sewing machine to a customer's home, and picked up a trade-in. Because of the size of the new machine, both men were required to carry it into the house, however, Taff alone carried out the smaller trade-in, while Fortenberry standing on the porch of the house held open the screen door. After Taff stepped on to the porch, he slipped, tripped or stumbled over a small rug or door mat, fell from the porch, and landed on the ground in a sitting position, with the machine in his lap.
The complaint, as amended, contains several specific charges of negligence on the part of Singer, including its failure through Fortenberry to warn and caution Taff of the existence of obstacles in his path. Pretermitting the other charges of negligence, we think that on this issue alone, there are controverted issues of fact of such materiality as to preclude summary disposition of the case.
Appellee Singer contends that the premises on which Taff was injured were in no way under its control; that it had no knowledge...
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