Sunray Oil Corporation v. Allbritton

187 F.2d 475, 1951 U.S. App. LEXIS 2265

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 1951
• Docket: 13148_1
• Status: Published

Opinions

HUTCHESON, Chief Judge.

For a statement of the issues and pertinent facts in this case, we refer to the opinion of the trial court, which is reported in D.C., 88 F.Supp. 54. We agree with the lower court’s holding: that, if Sunray retained control over the premises and the derrick, it was bound to exercise reasonable care to maintain the derrick in- safe condition for use; and' that there was substantial evidence to support its finding that Sunray did retain such control. We agree, too, with its holding: that there was substantial evidence to support the jury’s findings, that Sunray failed to exercise such care and that such failure was the proximate cause of the collapse of the derrick and the injuries sustained by the appellee.

The crucial question as to liability on this appeal is whether the appellant retained control of the derrick at the time of its fall. Neither side requested an instruction to the jury for a special verdict on this particular point; the court gave none; and the jury made no finding thereon. There was a finding by the jury that the derrick was defective immediately prior to its collapse, and that its defective condition could have been discovered by appellant by the exercise of ordinary care, which it failed to do, and which failure was a proximate cause of the derrick’s falling. There were also findings that, at the time of the collapse and immediately prior thereto, the contractor had, and the contractee did not have, control over the means and manner of performance of the work which was required of appellee.

The court below rejected appellant’s contention that the jury’s finding as to who had control over the means and manner of performing the work prevented it from being liable on the theory that it retained control of the derrick. The court held that such finding had reference only to the dispute as to whether Allbritton was employed by the appellant or the contractor; and the jury found that he was not employed by appellant. No special finding by the jury having been made or requested on the particular issue as to control of the derrick, the trial judge was empowered to make it under Rule 49(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. By failing to request such finding by the jury, each party waived the right to a trial thereof by jury. On this point, said Rule 49(a) further provides as follows: “As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.”

It is contended by the appellee that he was a business invitee under the derrick and on the premises of appellant; the latter admitted in its responsive pleading that appellee “was either an employee or an invitee of the defendant as alleged by plaintiff.” It is obvious from this that admittedly Allbritton was either an employee or invitee of the appellant. The jury found that he was not an employee; the trial court found or is deemed to have found that he was an invitee. ■ Allbritton was not required to work on the derrick; he himself did not use it; and his work in no way affected it. He was required to handle only tools as distinguished from machinery. At no time did he go upon the derrick, though he was required to be at a point which put him in danger of being hit by it if it fell. Other independent contractors were performing work for Sunray under the derrick at the time it fell, and the latter’s superintendent at the same time was supervising the whole operation. The trial court’s finding, that Sun-ray had not surrendered control of the derrick to appellee’s employer, is supported by substantial evidence and should not be set aside as clearly erroneous. It appearing from the working arrangement that the derrick remained under the control of appellant, and the appellee being an invitee as aforesaid, it follows that appellant was under the legal duty to exercise ordinary care to keep the premises, including the derrick, in a reasonably safe condition for appellee’s use.

Finding no reversible error in the record, we, therefore, affirm the judgment, except as to the recovery of $13,-084.70, which had been paid to Allbritton by the workmen’s compensation insurance carrier, and which Allbritton had sought to recover on its behalf. Though it was the real party in interest, with the right to sue therefor, it was not a party to this suit, having failed and refused to prosecute it against appellant. Instead, it sought to recover without suing by agreeing with appellee that, if he would bring the suit, he could recover, and hold for it, all sums that it was entitled to recover against defendant by virtue of its subrogation rights under the laws of Texas. Appellee accordingly prayed that he recover and hold said sums as trustee, but this he could not do. He was not the trustee of an express trust in the sense of Rule 17(a), which provides that every action shall be brought in the name of the real party in interest but that the trustee of an express trust may sue in his own name without joining with him the party for whose benefit the action is brought. Moreover, it is now settled by the Texas law that the employee’s right to recover against third persons is limited to damages in excess of the compensation paid to him.¹

The judgment is, therefore, reformed by reducing it by the sum of $13,084.70, and, as reformed, is Affirmed.

Reformed and affirmed.

HOLMES and McCORD, Circuit Judges, dissenting.,

1 . Texas Employers Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982; Wm. Cameron & Co. v. Gamble, Tex.Civ.App., 216 S.W. 459; Hanson v. Ponder, Tex.Com. App., 300 S.W. 35, 40; Mitchell v. Dillingham, Tex.Civ.App., 22 S.W.2d 971, 972; Pedigo & Pedigo v. Croom, Tex.Civ. App., 37 S.W.2d 1074, 1076; Hoffman v. Houston Clinic, Tex.Civ.App., 41 S.W.2d 134, 138; Hartford Accident & Indemnity Co. v. Week’s Drug Store, Tex.Civ. App., 161 S.W.2d 153, 155; Traders & General Ins. Co. v. West Texas Utilities Co., 1401 Tex. 165, 165 S.W.2d 713, 715. See also Art. 8307, R.C.S. of Texas 1925, Vernon’s Ann.Civ.St. art. 8307. Cf. Jordan v. Collier, Tex.Civ.App., 223 S.W.2d 544i, 548.