City of Austin v. Schmedes , 1954 Tex. App. LEXIS 2743 ( 1954 )

On Motion for Rehearing

HUGHES, Justice.

All appellants have filed motions for rehearing but only Dean Skinner’s motion requires further attention. He states that in holding that appellees have a cause of action against him under his contract with the State we are in conflict with Taylor v. Dunn, 80 Tex. 652, 16 S.W. 732, Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482 and Buckner v. Colwell, Tex.Civ.App., Beaumont, 131 S.W.2d 675.

In Taylor v. Dunn the Court construed an ordinance of the City of Austin which authorized certain contractors to construct and operate a railway along College Street to the State Capitol and which provided that such contractors “shall be liable and responsible to any and all persons for any damage or injury that may result to him or them or their property from the construction, use, and maintaining of said railroad” [80 Tex. 652, 16 S.W. 733] to secure indemnity to the City and not to create a cause of action in favor of those injured by negligent operations of the railway.

We quote the first headnote in Grasso to show the inapplicability of such case:

“Surety on bond furnished by motor carrier of freight as required by statute could not be joined with insured in action by third party for injuries sustained due to insured’s negligence, since statute makes surety liable for payment of all judgments recovered against insured and not liable for payment of damages resulting from insured’s negligence. (Vernon’s Ann.Civ.St., art. 911b, § 13.)”

Buckner v. Colwell is a venue .case. Buckner was doing public work for the State, under a written contract containing the following provisions [131 S.W.2d 676]:

“ ‘The contractor shall save harmless the State from all suits, actions or claims brought on account of any injuries or damages sustained by any person or property in consequence of any neglect in safeguarding the work by the contractor.’ ”

The Court held that venue could not be sustained in the county where an injury occurred on the theory that this contract was for the benefit of a third party who was injured by Buckner’s negligence but sustained venue in such county on other grounds. Taylor v. Dunn, supra, was cited in support of its holding as were three other cases relating to liability under statutory bonds.

Skinner agrees that the intention of the parties, as gathered from the terms of the contract, is controlling but contends that we, in applying this rule, have reached an erroneous conclusion.

In Taylor v. Dunn the City of Austin had a potential liability for damages resulting from improper construction or maintenance of the railway on its streets and it was against this hazard that the City sought protection. Under these circumstances the Court there very properly construed the ordinance as reflecting only an intention to provide indemnity to the City.

In our case there was no need for indemnity. There was no potential liability of the State against which the State might properly contract. The State is not liable for the torts of its agents or employees and to construe the contract here as reflecting an intention to provide for indemnity against a non-existent liability would do violence to the language used and would brand it as an idle waste of words. It is our duty to give effect to all the provisions of the contract and to construe each provision reasonably and so as to carry out the clear intentions of the parties as reflected by the contract. We believe that we have correctly done so in holding that this contract inured to the benefit of appellees in this case.

Skinner also contends that appellees did not declare upon the contract. We have examined the pleadings of appellees and find that the contract was alleged and that portions of it were set out in the petition.

Appellants’ Motions for Rehearing are overruled.

Motions overruled.