West Texas Utilities Co. v. Renner

• Decision Date: 26 September 1930
• Docket Number: No. 713.,713.
• Citation: 32 S.W.2d 264
• Parties: WEST TEXAS UTILITIES CO. et al. v. RENNER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

32 S.W.2d 264

WEST TEXAS UTILITIES CO. et al. v. RENNER et al.^*

No. 713.

Court of Civil Appeals of Texas. Eastland.

September 26, 1930.

Rehearing Denied November 7, 1930.

Appeal from District Court, Taylor County; E. M. Overshiner, Special Judge.

Suit by S. V. Renner against the West Texas Utilities Company and others, in which the Texas Employers' Insurance Association intervened and the Mosher Steel & Machinery Company was impleaded, and defendant named filed a cross-action. Judgment for plaintiff and intervener, and defendant appeals.

Affirmed.

Wagstaff, Harwell, Wagstaff & Douthit, of Abiline, and Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Ben L. Cox, of Abilene, and W. L. Thornton, John West, and Leachman & Gardere, all of Dallas, for appellees.

HICKMAN, C. J.

The appellants are West Texas Utilities Company and Texas Plains Public Service Company, but since, for the purposes of this suit, they are one and the same entity, the opinion will refer to only one appellant, West Texas Utilities Company. Appellant is a distributor of electric current for light and power in the town of McCamey and the surrounding oil fields. It contracted with Mosher Steel & Machinery Company, an independent contractor, to erect an addition, known as a "lean-to," to a building belonging to it and situated near McCamey. The addition was constructed of sheet iron and steel. Appellee S. V. Renner, was one of the employees of the independent contractor engaged in the erection of the structure. A high line of appellant, carrying 13,000 volts of electricity, passed near the roof of the addition where appellee was at work. This high line was not insulated. In some manner appellee lost his balance while working on the roof of the structure and undertook to regain it by manipulating a metal bar which he held in his hand. In so doing the bar either touched or came in close proximity to the high-voltage wire, and a heavy charge of electricity passed through his body and on through the metal structure into the ground, inflicting upon him serious and permanent injuries. Mosher Steel & Machinery Company, appellee's employer, carried compensation insurance with the Texas Employers' Insurance Association in accordance with the Workmen's Compensation Law, and appellee was paid the benefits to which he was entitled thereunder. This suit was instituted by Renner against appellant for damages on account of the injuries sustained by him, based upon allegations of various grounds of negligence on the part of appellant. The compensation insurer intervened under the provisions of section 6a, art. 8307, R. S., 1925, to recover back the compensation and expenses paid by it on account of said injuries. Appellant in its answer impleaded Mosher Steel & Machinery Company, alleging, in substance, the payment by the compensation insurer to the employee, and alleging that, if any of the acts of negligence charged by the plaintiff should be found to be true, then Mosher Steel & Machinery Company was a joint wrongdoer and joint tortfeasor, and, if the plaintiff was not warned of the danger by his employer, then such employer violated its duty and thereby caused the injuries to plaintiff, "and it would have no contribution against the defendants West Texas Utilities Company and Texas Plains Public Service Company for any sum paid by reason of the injury to plaintiff * * * and by reason of the joint wrong of the Mosher Steel & Machinery Company with defendants, if there was any wrong, which is denied, the intervenor nor plaintiff herein has any right of recovery whatever against the defendants herein, and therefore defendants plead that the said sum of $6820.00 was a complete release of the entire cause of action, and, if not, should be credited on any judgment that might be rendered herein, and that intervenor and plaintiff should recover nothing whatever by reason of their suit in this case." By way of cross-action over and against Mosher Steel & Machinery Company the appellant prayed that it have judgment over and against said company for any judgment that might be rendered against it, on the theory that, if plaintiff was not warned of the dangers, his said employer breached the duty it owed to him.

On motion of Mosher Steel & Machinery Company a peremptory instruction in its favor was given by the court to the jury and verdict was returned and judgment rendered accordingly. The case, as between appellee Renner and appellant, was submitted to the jury on special issues, which, together with the answers thereto, were as follows:

"Special Issue No. 1:

"A. Do you find from a preponderance of the evidence that the West Texas Utilities Company on July 27th, 1927, maintained its high voltage wires in an uninsulated condition at and near the place where the plaintiff was injured? Answer yes or no. Answer: Yes.

"B. If you have answered the foregoing question in the affirmative then you will answer this question: Do you find from a preponderance of the evidence that such maintaining of said high voltage wires in an uninsulated condition at and near the place where the plaintiff was injured, and at the time was negligence on the part of the West Texas Utilities Company? Answer yes or no. Answer: Yes.

"C. If you have answered the above issue in the affirmative then answer this issue: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injuries, if any, sustained by the plaintiff Renner? Answer yes or no. Answer: Yes.

"Special Issue No. 2:

"A. Do you find from a preponderance of the evidence that the defendant West Texas Utilities Company was guilty of negligence in failing to cover or protect the high voltage, uninsulated wires, at or near the place where the plaintiff was working with a rubber apron or other similar contrivance? Answer yes or no. Answer: No.

"B. If you have answered the foregoing issue in the affirmative then answer this issue: Do you find from a preponderance of the evidence that such negligence, if any, of the defendant West Texas Utilities Company was a proximate cause of the injuries, if any, suffered by the plaintiff, Renner? Answer yes or no. Answer: No.

"Special Issue No. 3:

"A. Do you find from a preponderance of the evidence that the defendant, West Texas Utilities Company, at the time and on the occasion of plaintiff's injury, was negligent in failing to disconnect or cut off the high voltage current which was transmitted in the wires at and near where plaintiff was injured, if it was, while plaintiff was engaged in his work? Answer yes or no. Answer: Yes.

"B. Do you find from a preponderance of the evidence that such negligence, if any, in failing to cut off or disconnect said current was a proximate cause of the injuries, if any, of the plaintiff? Answer yes or no. Answer: Yes.

"Special Issue No. 4:

"A. Do you find from a preponderance of the evidence that the defendant, West Texas Utilities Company, moved the transmission or electric wires, in question, from a point which was not in close proximity to the building under construction, to a point within close proximity to such building after the work began in which plaintiff was engaged at the time of his injury? Answer yes or no. Answer: Yes.

"B. If you have answered the above issue in the affirmative then answer this issue: Do you find from a preponderance of the evidence that the West Texas Utilities Company was guilty of negligence in moving said wires closer to the building in question, if it did, after plaintiff's work began? Answer yes or no. Answer: Yes.

"C. If you have answered the above issue in the affirmative then answer this issue: Was such negligence, if any, mentioned in the issue just above a proximate cause of plaintiff's injuries, if any? Answer yes or no. Answer: No.

"Special Issue No. 5:

"Was the plaintiff guilty of contributory negligence in permitting the steel rod, which he held in his hand at the time of the injury, to come in contact, if he did, with the high voltage electric wire from which he received the electric shock? Answer yes or no. Answer: No.

"If in answer to either of the special issues numbers one, two, three and four you have found that the defendant was negligent and that such negligence was the proximate cause of plaintiff's injuries, if any, you will answer the following question:

"Special Issue No. 6:

"What amount of money, if paid at this time, would justly and fairly compensate the plaintiff for such injuries, If any, that he may have sustained, which have been proximately caused by such negligence, if any? Answer in dollars and cents. $22,500.00."

Upon this verdict judgment was rendered against appellant for $22,500 apportioned properly between Renner and the intervener, Texas Employers' Insurance Association.

By reference to the special issues above copied it will be observed that appellant was found guilty of two acts which proximately caused appellee's injuries; namely (1st) in maintaining the high voltage wires in an uninsulated condition at and near the place where appellee was injured, and at the time of his injuries; and (2d) in failing to disconnect or cut off the current. We shall not consider the question of whether negligence could be predicated upon a failure of appellant to disconnect its current and thereby suspend its business operations. Under the view which we take of the controlling issues involved, a decision of that question is unnecessary, and that basis of the judgment will not be further noticed.

It is the contention of appellant that it owed to appellee no other duty than to warn him of the dangers which were unknown to him, and, having discharged its full duty by so warning him, liability against it could not be predicated upon its negligence in any of the particulars pleaded by appellee, and its request for a peremptory instruction should have been granted.

Much is said in the briefs of the parties on the subject...