Traveler's Insurance Company v. United States

• Decision Date: 29 May 1968
• Docket Number: Civ. A. No. 66-G-68.
• Citation: 283 F. Supp. 14
• Parties: TRAVELER'S INSURANCE COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

283 F. Supp. 14

TRAVELER'S INSURANCE COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 66-G-68.

United States District Court S. D. Texas, Galveston Division.

April 3, 1968.

Order May 29, 1968.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James R. Coffee, Houston, Tex., for plaintiff.

Frank C. Cooksey and William B. Butler, Asst. U. S. Attys., Houston, Tex., for defendant.

MEMORANDUM AND ORDER:

NOEL, District Judge.

This is a suit brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b) and §§ 2671-2680, against the United States for contribution and indemnity.

On December 10, 1964, Mrs. J. J. (Violet) Jones received an injury to her back when she fell on the porch of the United States Post Office in Angleton, Brazoria County, Texas. The facts and circumstances surrounding Mrs. Jones' accident on December 10, 1964 are as follows. The Angleton post office building has a southerly front and faces Orange Street. The public enters the post office through a double door at the front (south) of the building. This entrance is off-center and near the east end of the building. There is a porch in front of the public entrance which extends about two-thirds the width of the building and is covered by an extension of the building's roof. There are two sidewalks leading to the porch and public entrance of the post office; one from the south, connecting the building and Orange Street, and one from the west, connecting the building and a patron parking lot located on the west side of the building. The south sidewalk leads directly to the entrance of the post office, while the west sidewalk runs along the front of the building and turns north onto the porch at a point about twenty feet west of the entrance. Thus a person who uses the west sidewalk to approach the building must turn left onto the porch, then back to the right and walk along the porch some twenty feet to the entrance. The sidewalks and the porch are constructed of concrete, but the sidewalks have a "broom" or rough-surface finish while the porch has a "steel trowel" or smooth-surface finish. Both of the sidewalks slope up to the level of the porch, thereby forming an incline or ramp to the porch level; thus, there are no steps between the sidewalks and the porch.

It had been raining most of the day on December 10, 1964, and it was raining at 4:30 p. m. when Mrs. Jones parked her car in the post office parking lot. She left her car and walked up the (west) sidewalk leading from the parking lot to the entrance of the post office. When Mrs. Jones stepped from the sidewalk onto the rain-wet porch, she lost her footing and fell to the porch, landing in a sitting position. It was in this manner and on this occasion that Mrs. Jones received the injury to her back.¹

Mrs. Jones testified that on the day of the accident, she was wearing a pair of shoes, commonly called "flats," with leather soles and heels. She stated that she was walking faster than normal in order to escape the rain, but that she noticed the porch was wet and tried to take ordinary precautions when she stepped onto the porch. Mrs. Jones said that she visited the post office almost daily, but that she had used the approach from the parking lot only three or four times previous to December 4, 1964, and never when the porch was wet; normally she would park in front of the building on Orange Street and use the south sidewalk.

There is no evidence that Mrs. Jones' fall was caused by an obstruction, such as debris, on the porch. Nor is there evidence in the record to support a finding that Mrs. Jones' carelessness or negligence contributed to her fall. She observed that the porch was wet but, after taking ordinary precautions, concluded that it was safe for her passage. As to her, the danger was not open and obvious, and it cannot be said that as a matter of law she did not act as a reasonably careful person would have acted in the same or similar circumstances. The only evidence in the record, clearly indicates that the accident was due to the unsafe condition of the rain-slick porch.

I find that Mrs. Jones was injured on December 10, 1964, that her injury occurred when she fell on the porch of the post office building in Angleton, Texas, and that the unsafe condition of the porch was the proximate cause of her fall.

On the date of Mrs. Jones' accident the post office building was owned by Maurice and Edith Cohen and leased to the United States.² Mrs. Jones filed suit against Mr. Cohen in the District Court of Brazoria County, Texas on December 30, 1965 to recover damages in the amount of $75,000. She alleged that the fall was due to the negligence of Cohen in failing to exercise ordinary care with respect to the construction, maintenance and precautionary measures of the porch area where she had fallen.³ Mrs. Jones also filed suit against the United States in this court on November 17, 1966, alleging negligence on the part of the United States in allowing the building to attain the state of disrepair that was the cause of her injuries, and demanded judgment in the amount of $75,000. Cohen was unable to bring the United States into the state court suit because the federal courts have exclusive jurisdiction of civil actions instituted on this type of claim against the United States. 28 U.S.C. § 1346(b). Thus, on September 14, 1966, Cohen filed this action against the United States for indemnity or contribution in the event Cohen was found to be liable to Mrs. Jones.

Jones and Cohen undertook settlement negotiations, in which the United States elected not to participate.⁴ On February 2, 1967, a contract of settlement was executed before trial by Jones and Cohen whereby Travelers Insurance Company, insurer of Cohen, agreed to pay Mrs. Jones the sum of $20,000 in full settlement of her claim. In return, Mrs. Jones assigned to Cohen all claims and causes of action growing out of the accident, including her claim against the United States.⁵ Following the settlement, Mrs. Jones' suit against the United States was dismissed on motion of the Government, and Cohen pursued this action for contribution or indemnity. Travelers Insurance Company has been substituted as party plaintiff. The issue of damages has been severed, and trial was to the court on the issue of liability alone.

Plaintiff's right to indemnity or contribution against the United States under the Federal Tort Claims Act is governed by the law of the State of Texas. United States v. Yellow Cab Co., 340 U.S. 543, 551, 71 S.Ct. 399, 95 L.Ed. 523 (1951). In order to be entitled to indemnity, plaintiff must prove that it discharged an obligation to Mrs. Jones for which the United States was principally liable. In the framework of this case this means that it must prove that Mrs. Jones' injury (and plaintiff's liability therefor) resulted from a violation of a duty which the United States owed Cohen and that Cohen has violated no duty toward the United States.⁶ Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 623, 23 A.L.R.2d 1114 (1951); Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565 (1949). In order to be entitled to sue for and recover contribution, it must appear that plaintiff by paying a judgment has discharged a liability to Mrs. Jones which was shared by the United States, as joint tortfeasor, and in so doing has paid more than his fair share of the joint liability. Tex.Rev.Civ.Stat.Ann. art. 2212. See Callihan Interests, Inc. v. Duffield, 385 S.W.2d 568, 587 (Tex.Civ.App.1964) error ref. Thus, for indemnity plaintiff must show that—between it and the United States—the latter should bear the full responsibility for Mrs. Jones' injury, and for contribution plaintiff must show that the United States is a co-tortfeasor and jointly responsible.⁷ There can be neither contribution nor indemnity unless the United States was liable to Mrs. Jones in damages. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.1964) error ref. n. r. e.

Was either Cohen or the United States liable to Mrs. Jones for the injury in question? Mrs. Jones was an invitee (customer) of the United States on the occasion of the accident. The general rule is that the owner and occupier of the building owe a duty to invitees to exercise ordinary care to keep the premises in a reasonably safe condition so that they will not be injured. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497 (1952); Renfro Drug Co. v. Lewis, supra, noted in 30 Texas L.Rev. 131; Kallum v. Wheeler, 129 Tex. 74, 101 S.W.2d 225, 229 (Tex.Comm.App. 1937). Normally, this duty falls upon the occupier. The Texas Supreme Court has outlined his duties to be as follows:

This includes a duty of the occupier to inspect and to discover dangerous conditions. His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof.

Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.1963) (citations omitted). See also Western Auto Supply Co. v. Campbell, 373 S.W.2d 735, 736 (Tex.1964). See generally Greenhill, Assumed Risk, 20 Sw.L.J. 1, 8-9 (1966). The lessor is not liable to the public or third persons for injuries resulting from a defective structure on the premises unless he has covenanted to maintain the premises in good repair; if he has so covenanted, a duty is owed and, if breached, liability is imposed. Harvey v. Seale, 362 S.W.2d 310, 312 (Tex.1962); Perez v. Reybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620 (1890).⁸ This obligation was imposed upon Cohen by the terms of the lease he had entered into with the United States.⁹ It provided:

The Lessor shall, unless herein specified to the contrary maintain the demised

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