Trotter v. McLennan County Water Control & Imp. Dist. No. 1

• Decision Date: 06 November 1952
• Docket Number: No. 3053,3053
• Citation: 252 S.W.2d 734
• Parties: TROTTER v. McLENNAN COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.
• Court: Texas Court of Appeals

Page 734

252 S.W.2d 734

TROTTER v. McLENNAN COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.

No. 3053.

Court of Civil Appeals of Texas, Waco.

Nov. 6, 1952.

Musick & Peters, Houston, Koehne & Jones, Waco, for appellant.

Sleeper, Boynton, Darden & Burleson, Waco, for appellee.

TIREY, Justice.

This is a negligence case. Appellant brought the suit against McLennan County Water Control & Improvement District No. 1 (a corporation), Joe E. Ward, J. D. George, R. A. Drain, and R. T. Swilling & Son. Pleas of privilege were sustained as to each of the defendants except the Water District, and the cause was moved to the respective counties of the residence of the other defendants named, leaving the case pending in the district court of McLennan County with appellant as plaintiff and the Water District as defendant. Appellant sought to recover damages alleged to have been sustained by him when the furniture, fixtures and stock merchandise located in his drug store in Bellmead, Texas, were damaged as the result of an explosion and fire which occurred on December 6, 1948. Appellant alleged and sought to show that the explosion and fire were the direct and proximate result of the negligence of the agents of the Water District in making certain improvements in and near plaintiff's store, and that such negligent acts of the agents broke or bent a gas pipe and caused the gas to leak into plaintiff's store where it was ignited by a water heater. The cause was tried to a jury and at the conclusion of plaintiff's evidence defendant filed and presented its motion for instructed verdict on the grounds that the evidence was insufficient to establish agency and negligence and the court sustained this motion and rendered judgment in favor of the Water District, and plaintiff perfected his appeal.

Appellant's points 1, 2, 3 and 4 say in effect that having pleaded and tendered testimony on the issue of agency and negligence against appellee, the court erred in instructing a verdict against him. We overrule these contentions.

In 1947, Joe E. Ward, a consulting engineer of Wichita Falls, Texas, submitted the following proposal to the appellee:

'We propose to make all necessary surveys; prepare the plans and specifications; submit the plans and specifications to the required state approving agencies for their approval; and to furnish all necessary engineers, labor, equipment and materials to properly supervise the construction of the proposed water supply and water distribution system and sanitary sewer system and sewage disposal plant for the following fee: When the completed plans and specifications and an estimate of cost are presented to you, you will pay us three (3) per cent of the estimated cost of the improvements for making the surveys and preparing the plans and specifications; and for supervising the construction of the improvements, you will pay us a fee of three (3) per cent of the cost of the construction and materials on hand based on the contractor's estimate and payable monthly.

'If the above proposal is satisfactory to you, we would appreciate your so indicating by signing below, keeping two copies of this agreement and returning the others to us.'

The appellee accepted this proposal and thereafter Ward prepared plans and specifications for the appellee in accord with the above contract. Subsequent thereto the appellee entered into a contract with J. D. George for the installation of the sewer line. (It appears that Swilling & Son had the contract for the construction of the water lines.) The president of appellee testified to the effect that Ward fixed the plans and specifications and that he employed his own men to do his work and paid them therefor and supervised and inspected all the work done by the original contractor and subcontractors on this job, according to the terms of the proposal that he submitted. J. D. George testified to the effect that he complied with his contract and that he employed his men and paid them therefor. Swilling & Son handled their contract in the same manner. As we understand appellant, he does not contend seriously that George and Ward and Swilling & Son were not independent contractors, but it is his contention that the contract specifically made these defendants agents of the Water District, and because it did make them its agents that the doctrine of respondeat superior applies in this case. As we understand appellant's brief, his contention is grounded on these provisions of the contract:

'Superintendence and Inspection: It is agreed by the contractor that the owner shall be and is hereby authorized to appoint from time to time such engineers, supervisors or inspectors as the said owner may deem proper, to inspect the material furnished and the work done under this agreement, and to see that the said material is furnished, and said work done in accordance with the specifications therefor. The contractor shall furnish all reasonable aid and assistance required by the engineers, supervisors, or inspectors for the proper inspection and examination of the work and all parts of the same. The contractor shall regard and obey the directions and instructions of any engineers, supervisors, or inspectors so appointed, when the same are consistent with the obligations of this agreement and the accompanying specifications; provided, however, should the contractor object to any order by any subordinate engineer, superintendent, or inspector, the contractor may within six (6) days make written appeal to the engineer for his decision. * * * 'Right of Entry: The owner reserves the right to enter the property or location on which the works herein contracted for are to be constructed or installed, by such agent or agents as it may elect, for the purpose of supervising and inspecting the work, or for the purpose of constructing or installing such collateral work as said owner may desire. * * *

'Preliminary Approval: No engineer, supervisor, or inspector shall have any power to waive the obligations of this contract for the furnishing by the contractor of good material, and for his performing good work as herein described, and in full accordance with the plans and specifications. No failure or omission of any engineer, supervisor, or inspector to condemn any defective work or material shall release the contractor from the obligations at once to tear out, remove, and properly replace the same at any time prior to final acceptance upon the discovery of said defective work, or material; provided, however, that the engineer, his assistant, or inspector shall, upon request of the contractor, inspect and accept or reject any material furnished; and in the event the material has been once accepted by the engineer, his assistant, or inspector, such acceptance shall be binding on the owner, unless it can be clearly shown that such material furnished does not meet the specifications for this work.

'Any questioned work may be ordered taken...