holding that general negligence question properly submitted issue of contractor’s negligent installation of water pipe
How later courts described this case
- holding that general negligence question properly submitted issue of contractor’s negligent installation of water pipe
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The opinion
ON MOTION FOR REHEARING
All parties have filed motions for rehearing. After careful consideration of them, particularly the points raised by Burden Brothers, we have concluded that our original disposition of this cause was in error insofar as it reformed the judgment below to allow Hyatt Cheek full indemnity against Burden Brothers.
As stated in our original opinion, indemnity between joint tort-feasors is allowed when one of them has breached a duty owed to the other, but the other is blameless toward the first. Austin Road Co. v. Pope, 147 Tex. 430 , 216 S.W.2d 563 (1949). The method to determine if indemnity should be allowed is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether one such as plaintiff,although guilty of a wrong against a third person, is nevertheless entitled to recover against the other tort-feasor.
Burden Brothers correctly points out that Hyatt Cheek was responsible for the construction and installation of the meter box. Evidence was presented that the pipe ruptured at a point near where it entered the meter box. In response to special issues, the jury found that Hyatt Cheek failed to install the meter box in a good and workmanlike manner, and that such failure was a proximate cause of the damages. In every contract between a contractor and his subcontractor, the law implies an obligation on the part of the contractor to so perform his part of the work that the subcontractor’s ability to perform his work is not prevented or impaired. Citizens National Bank of Orlando v. Vitt, 367 F.2d 541 (5th Cir. 1966); 3 Corbin On Contracts § 571. Applying that rule and the above mentioned jury findings to the fact situation here, it appears that Hyatt Cheek breached a duty it owed to Burden Brothers which caused or contributed to the loss. In that situation, applying the test approved in Austin Road Co. v. Pope, supra, it is clear that Hyatt Cheek as plaintiff in a direct suit against Burden Brothers would be barred from recovery by its own dereliction of duty. Therefore, indemnity is not proper.
Our judgment will be modified to delete the provisions which reformed the judgment below to allow Hyatt Cheek full indemnity against Burden Brothers. In other respects our original disposition will remain unchanged. Except as herein indicated, all motions for rehearing are respectfully overruled.