Baca v. Sand, Inc.

600 S.W.2d 840, 1980 Tex. App. LEXIS 3198
CourtCourt of Appeals of Texas
DecidedMarch 20, 1980
DocketNo. 17582
StatusPublished
Cited by6 cases

This text of 600 S.W.2d 840 (Baca v. Sand, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baca v. Sand, Inc., 600 S.W.2d 840, 1980 Tex. App. LEXIS 3198 (Tex. Ct. App. 1980).

Opinions

EVANS, Justice.

This is a personal injury action. The plaintiff, Darrell R. Baca, appeals from a take nothing judgment entered non obstan-te veredicto in favor of the sole defendant, Sand, Inc.

The plaintiff lost part of his right arm when it became engaged in the moving gears of a dragline he was attempting to lubricate. The dragline, owned by the plaintiff’s employer, T. A. Kilgore & Son, Inc., was being used to excavate sand from leasehold premises owned by the defendant, Sand, Inc., and the plaintiff contended that Sand, Inc., had been negligent in supplying him with defective equipment and in failing to warn or otherwise guard him against the dangerous nature of the machinery.

In response to special issues the jury found that Sand, Inc., was negligent (a) in failing to provide the plaintiff a safe place to work; (b) supplying or permitting to be supplied antiquated, ill-equipped equipment; (c) in failing to properly instruct personnel as to the use of dangerous equipment; and (d) in failing to supply and provide a proper guard for the dragline gears. The jury further found that each of such acts or omissions was a proximate cause of the occurrence, and it awarded the plaintiff $270,000 for past loss of earnings, past and future medical expenses, and physical pain and mental anguish.

In support of the trial court’s judgment n.o.v., the defendant Sand, Inc., contends that it owed the plaintiff no duty to warn or otherwise protect him against the dangerous condition of the machinery because the danger arose out of the performance of the work for which he was employed. Con[842]*842tending that the status of the plaintiff’s employer, T. A. Kilgore & Son, Inc., was that of an independent contractor, the defendant, Sand, Inc., relies upon the rule that where an activity is conducted by and is under the control of an independent contractor, and where the danger arises out of the activity of the independent contractor’s staff, the responsibility for the activity is that of the independent contractor, and not that of the owner of the premises. See Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976); Shell Chemical Company v. Lamb, 493 S.W.2d 742, 747 (Tex.1973); Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971). It is the defendant’s position that the sand excavation operation was being conducted entirely by T. A. Kilgore & Son, Inc., and that Sand, Inc., was merely a trade name used by T. A. Kilgore & Son, Inc., for business convenience.

The unusual factor in this case, which distinguishes it from the authorities relied upon by the defendant, is that exclusive control of the entire sand excavation operation was vested in one individual, the principal officer of both the parent corporation, T. A. Kilgore & Son, Inc., and its subsidiary, Sand, Inc.

It is undisputed that Mr. Charles C. Kil-gore, the president of Sand, Inc., and vice-president of T. A. Kilgore & Son, was the “foreman in charge” of the entire sand excavation operation at the time of the accident. Although Mr. Kilgore testified that all of the persons working at the site were employees of T. A. Kilgore & Son, Inc., and that Sand, Inc., held only a lease on the premises, he admitted that the “whole business” was in his charge and that he had responsibility for everything going on there, including safety precautions. He further testified that the sand excavation business had been carried in the yellow pages of the telephone book under the name “Sand, Inc.”; that the sign on the premises designated the business as “Sand, Inc.”; and that when customers ordered sand they were given a receipt showing the business name to be “Sand, Inc.”

A corporation is liable for the torts committed by its agents in the scope of their authority to the same extent as any other principal. Hildebrand, Texas Corporations, Volume 3 § 791, p. 233 (13 Texas Law Review, 253). Where a corporate officer, selected by the company’s board of directors, is empowered to manage a distinct phase of the corporate business in every essential respect, his acts in the line of duty are those of a vice-principal, and the corporation is liable for his negligent actions in the performance of his corporate duties. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 400 (1934).

In the instant case, the jury could have concluded from all of the circumstances in evidence that Charles C. Kilgore was acting as a vice-principal of both T. A. Kilgore & Son, Inc., and its subsidiary, Sand, Inc., in a single business enterprise. The jury’s finding of negligence on the part of Sand, Inc., necessarily reflects its determination that Mr. Kilgore participated, as the agent of Sand, Inc., in the dangerous activity which resulted in the plaintiff’s injury.

Mr. Kilgore’s testimony tended to show that his actions with respect to the sand excavation operation were conducted solely on behalf of T. A. Kilgore & Son, Inc., but his testimony, being that of an interested witness, did no more than raise a fact question for the jury. Cochran v. Wool Growers Central Storage Company, 140 Tex. 184, 166 S.W.2d 904 (1943); Praetorian Mutual Life Insurance Company v. Sherman, 455 S.W.2d 201 (Tex.1970). Thus, if the jury determined from all the evidence that Mr. Kil-gore participated, as president of Sand, Inc., in the management of the dangerous activity, it could properly have concluded that Sand, Inc., was negligent in the particulars alleged.

Under the jury’s verdict that Sand, Inc., was negligent and that its negligence was a proximate cause of the plaintiff’s injury, Sand, Inc., as one of two tort-feasors, was responsible to the plaintiff for the full amount of his damages.

It is also the contention of Sand, Inc., that even if it owed some duty to the plain[843]*843tiff, that duty was discharged as a matter of law, because the plaintiff’s employer, T. A. Kilgore & Son, Inc., was charged with knowledge of the dangerous condition. Sand, Inc., relies upon the rule set forth in Delhi-Taylor v. Henry that when an occupier of land owes a duty to employees of an independent contractor to protect or warn them against hidden dangers on the premises, an adequate warning to or full knowledge by the independent contractor of such dangers discharges the landowner’s alternative duty to warn. Delhi-Taylor v. Henry, 416 S.W.2d 390 (Tex.1967). This contention will be overruled for the reasons stated above. Furthermore, there is persuasive authority holding that the Delhi-Taylor rule has been nullified by the Texas Supreme Court in Parker v. Highland Park, Inc., 565 S.W.2d 512, 518 (Tex.1978); Schley v. Structural Metals, Inc., 595 S.W.2d 572 (Tex.Civ.App.-Waco, 1979).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

General Electric Co. v. Moritz
257 S.W.3d 211 (Texas Supreme Court, 2008)
Roy E. Thomas Construction Co. v. Arbs
692 S.W.2d 926 (Court of Appeals of Texas, 1985)
Shell Oil Co. v. Waxler
652 S.W.2d 454 (Court of Appeals of Texas, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
600 S.W.2d 840, 1980 Tex. App. LEXIS 3198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baca-v-sand-inc-texapp-1980.