Westinghouse Elec. Corp. v. Childs-Bellows

• Decision Date: 08 December 1961
• Docket Number: No. 16258,CHILDS-BELLOW,A,16258
• Citation: 352 S.W.2d 806
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v.ppellee.
• Court: Texas Court of Appeals

Page 806

352 S.W.2d 806

WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. CHILDS-BELLOWS, Appellee.

No. 16258.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 8, 1961.

Rehearing Denied Jan. 12, 1962.

Leachman, Gardere, Akin & Porter, and Gordon H. Rowe, Jr., Dallas, for appellant.

Spurlock, Schattman & Jacobs, and Kenneth M. Cole, Jr., Fort Worth, for appellee.

ON MOTION FOR REHEARING.

RENFRO, Justice.

The appellant's motion for rehearing is granted and our opinion of November 3, 1961, is hereby withdrawn.

The question before us is whether the trial court erred in holding that Childs-Bellows was entitled to indemnity from Westinghouse Electric Corporation.

The case was tried before the court on the pleadings and written stipulations only.

The appellee, Childs-Bellows, was general contractor for the construction of a new building for the First National Bank in Fort Worth. Appellant, Westinghouse Electric Corporation, was subcontractor for installation of elevators in the building. Childs-Bellows and Westinghouse entered into a written contract which provided in part:

'1. Statement of the Work:

'* * *

'(b) Subcontractor shall furnish all of the labor, material and equipment necessary to accomplish the following (hereinafter referred to as 'the Work'):

'High Rise Elevators 1 to 6 inclusive and all of the Escalators, all in accordance with the requirements of the Plans and Specifications for the sum of $600,858.00.

'* * *

'6. Indemnity Agreements.

'* * *

'(b) Subcontractor agrees to perform the Work in a good and workmanlike manner and in accordance with the provisions of the General Contract, and with the provisions of this Subcontract and in accordance with all safety rules and regulations set forth in the General Contract, or issued by Contractor, and in accordance with any and all laws, rules or regulations issued by any governmental authority having the authority to control the manner or method of carrying out the Work. Subcontractor further agrees that if the property of any person, firm or corporation, including that of Contractor, is lost, damaged, or destroyed while on the job site and such loss, damage or destruction is caused by, results from, or arises out of, the doing, or the method or manner of performance of the Work, or, is due to or results from, or arises out of, the failure of Subcontractor to do, or Subcontractor's omission to do, anything in connection with the Work, or required by this Subcontract, Subcontractor shall indemnify and save harmless Contractor from any and all such loss, damage or destruction. Subcontractor further agrees to and shall indemnify and save harmless Contractor from and against any and all loss, claim, demand, and suit for damage, including death and personal injury, growing out of, or incident to or resulting from the performance, or failure to perform the Work or the provisions of this Subcontract.' (Emphasis supplied.)

During the course of the Work, two employees of Westinghouse, in separate accidents, while in the course and scope of their employment, in furtherance of the Work, were injured as result of being struck by falling objects. Both were working inside an elevator shaft when injured. The injuries were the results of negligence on the part of employees of Childs-Bellows. Both injured...