United States Casualty Co. v. Rice
| Decision Date | 15 May 1929 |
| Docket Number | (No. 10415.) |
| Citation | 18 S.W.2d 760 |
| Parties | UNITED STATES CASUALTY CO. v. RICE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; R. T. Brown, Judge.
Action by the United States Casualty Company against Edna V. Rice, executrix of the estate of W. M. Rice, deceased, wherein C. R. Foster was joined as coplaintiff and filed plea of intervention. From a judgment for defendant, the Casualty Company appeals. Affirmed.
Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellant.
Turner, Rodgers & Winn, of Dallas, for appellee.
The United States Casualty Company, appellant, instituted this suit against Edna V. Rice, appellee, in her capacity as independent executrix of the estate of W. M. Rice, deceased, to recover in its own behalf the amount of compensation insurance it theretofore had been compelled to pay to one C. R. Foster under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309), and to recover an additional amount in favor of said Foster, whom it joined as coplaintiff. Foster, in addition to being made coplaintiff in this suit, filed in his own behalf a plea of intervention alleging substantially the grounds for recovery as were alleged for him as coplaintiff. This plea of intervention was dismissed by the trial court, and no appeal is prosecuted by Foster. The court sustained a general demurrer, as well as special exceptions, to appellant's petition, and the appeal is prosecuted by appellant to the judgment entered in favor of appellee on the general demurrer and special exceptions.
The question for review is: Did appellant's petition state a cause of action against appellee? The facts alleged show that W. M. Rice, in his lifetime, was engaged in the business of constructing buildings, and had the contract for the construction of an office building in the city of Dallas, known as the Allen Building. As a necessary incident to the construction of this building, the grounds were inclosed by a tall fence or barricade, and to permit entrance therein of heavy machinery, etc., there was constructed a large and heavy gate, the height of the barricade; that the Fountain Hardy Pipe Company was an employer of laborers in the city of Dallas and entitled under the law to carry compensation insurance on its employees and did carry such insurance with appellant; that on June 21, 1925, while in the course of his employment, as a laborer for said pipe company, Foster received injuries on the premises where the Allen Building was being constructed; that under the Workmen's Compensation Law, Foster was awarded as compensation for his injuries the sum of $3,057, and an additional sum of $495.40 for hospital and medical bills incurred by reason of said injuries; that after a contest in court, this award became a valid judgment against appellant, and it was compelled to pay and did pay said sums of money to Foster; that Foster's employer was a subcontractor under Rice, and on the occasion of Foster's injuries he was engaged in work of his employer in moving a large steam shovel for excavation work in the construction of the Allen Building; that in order to put said steam shovel in place for the excavation work, it was necessary for Foster to open this gate; and that when he attempted to do so, the gate broke from its fastenings and fell, and his injuries resulted therefrom.
The petition clearly alleged the negligence of W. M. Rice, his agents and servants, in the matter of the construction and hanging of the gate, and that the injury to Foster was a direct and proximate cause of this negligence. It is also alleged that W. M. Rice died testate June 17, 1925, four days prior to Foster's injuries; that his will was duly probated in Dallas county, and that under its terms appellee was appointed sole independent executrix, and that she was the sole beneficiary of decedent's estate; that she qualified as such independent executrix on the 7th day of July, 1925.
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