Texas Sling Company v. Emanuel, 7808
| Decision Date | 15 August 1967 |
| Docket Number | No. 7808,7808 |
| Citation | 418 S.W.2d 565 |
| Parties | TEXAS SLING COMPANY et al., Appellants, v. Samuel EMANUEL et al., Appellees. . Texarkana |
| Court | Texas Court of Appeals |
Howell E. Stone, Talbert, Giessel, Barnett & Stone, Jerry V. Walker, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellants.
Walter Workman, Baker, Botts, Shepherd & Coates, Stanley Swenson, Houston, for appellees.
In the summer of 1961, H. A. Lott, Inc., as general contractor, undertook construction of a school building in Houston, Texas. A large crane was needed in erecting the building. H. A. Lott, individually, owned a Koehring 605 crane and leased it to H. A. Lott, Inc. for use on the project. As erection of the structure progressed it became necessary to extend the crane's reach, that is, lengthen the boom of the crane. H. A. Lott, as owner of the crane, contracted with American Powerstage Company to furnish a twenty foot boom extension, together with twenty foot extensions of the crane's two pendant lines. American Powerstage Company contracted with Texas Sling Company, an organization specializing in splicing wire rope, to splice the twenty foot extensions into the existing pendant lines. The wire rope for the extension was supplied by American Powerstage Company, and the latter company installed the spliced boom pendant cables on the crane during the month of July, 1961, as the boom extension was added.
The Koehring 605 crane with the newly installed extensions was being used by H. A. Lott, Inc., to lift and pour concrete on the school job on August 31, 1961, when the crane fell. Several persons were injured and considerable property damage occurred. Samuel Emanuel, an employee of H. A. Lott, Inc., filed a personal injury action against Texas Sling Company, American Powerstage Company and H. A. Lott, individually. Travelers Insurance Company, workmen's compensation carrier for H. A. Lott, Inc., intervened. H. A. Lott, Inc. entered suit against American Powerstage Company and Texas Sling Company for damages to property. These actions were consolidated and tried before a jury in a district court of Harris County. A judgment awarding recovery of $75,182.00 was rendered for plaintiff, Samuel Emanuel, against Texas Sling Company, but out of this sum the intervenor, Travelers Insurance Company, was awarded $5,837.00; the judgment also awarded plaintiff H. A. Lott, Inc. a joint and several recovery of $7,000.00 for property damage from Texas Sling Company and American Powerstage Company; additionally, the judgment discharged the liability of H. A. Lott, individually, with a take nothing award.
The brief of this appellant has limited its appeal to the judgment recovered by Samuel Emanuel and Travelers Insurance Company. Relevant to this particular appeal, the record shows that about six weeks after the extension had been installed, on August 31, 1961, Samuel Emanuel, an employee of H. A. Lott, Inc., was performing his job of spreading concrete as it was emptied from a bucket hoisted to the second floor level by the crane. The bucket in use weighed approximately a thousand pounds and contained approximately four thousand pounds of concrete. When the loaded bucket was about six feet above the work deck a cable splice made by Texas Sling Company failed and the boom with its load crashed onto and through the decking. Samuel Emanuel was injured.
The first point of error briefed is as follows:
'I. The Court erred in entering judgment against Texas Sling Company insofar as said judgment was based upon answers to Special Issues Numbers 14 and 15 because:
(a) There was no evidence of any defect that could have existed in the splice made by Texas Sling Company which would cause it to slip other than an inadequate number of tucks and this issue was found by the jury against plaintiff.
(b) There was no evidence of any defect that in fact existed in the splice made by Texas Sling Company other than that concerning an inadequate number of tucks and this issue was found by the jury against plaintiff.
(c) There was no evidence that there was a defect in the splice made by Texas Sling Company which an inspection would have disclosed .
(d) There was no evidence that the failure of Texas Sling Company to inspect the splice after it was made was the proximate cause of the accident causing Plaintiff's injuries.
'The jury found in response to Special Issue No. 23 that Texas Sling Company 'orally agreed' with American Power Stage to furnish splices necessary to make suitable boom pendants; in response to Special Issue No. 24 that one of such splices was not suitable; in response to Special Issue No. 25 that such splice caused the boom pendant to be imminently dangerous, and in response to Special Issue No. 26, that the was the proximate cause of the accident.'
Special Issues No. 14 and 15 referred to in the point, together with the jury's verdict on them, are as follows:
'SPECIAL ISSUE NO. 14. Do you find from a preponderance of the evidence that before the boom pendants were furnished for use on the Koehring 605 Crane, the Texas Sling Company, acting by and through its agents and employees, failed to make such inspection of the splices of such pendants as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?
'Answer: 'We do'.
If you have answered Special Issue No. 14 'We do', and only in that event, then answer:
'SPECIAL ISSUE NO. 15. Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the accident of August 31, 1961?
Answer: 'We do."
The jury's verdict upon still another issue has a bearing that must be noticed in the consideration of this point; such issue and jury's answer follows:
'SPECIAL ISSUE NO. 12. Do you find from a preponderance of the evidence that Texas Sling Company, in making such splice, if you have so found, failed to use the number of tucks therein as would have been used therein by a splicer of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?
Answer: 'We do not."
No inspection of the splice was made by Texas Sling Company, so the initial questions the point of error presents for decision are whether or not there is any evidence that a defect in the splice could have existed, or that a defect did in fact exist, or that there was a defect in the splice that an inspection would have disclosed. The evidence having a tendency to support the jury's finding on these questions, in its most favorable aspect, is that the splice had shorter ends than other splices on the existing boom assembly, had fewer tucks than some splicers would place in a similar pendant line, the ends of strands in the splice were not brazed, the segment of extension cable spliced was of smaller diameter than that ordinarily used on a number 605 Koehring crane, and that a properly fabricated splice would break elsewhere before it would pull loose under tension.*
The evidence, although scanty and circumstantial in nature, has...
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Texas Sling Co. v. Emanuel
...Powerstage and held that no reversible error had been shown by either Texas Sling or American Powerstage as appellants in that court. 418 S.W.2d 565. We agree with the appellate court's holding that no error was shown with reference to the appeal of American Powerstage. That court's opinion......