319 F2d 115 Foreman v. Texas Electric Service Company
319 F.2d 115
Cecil W. FOREMAN and Texas Employers' Insurance Association,
TEXAS ELECTRIC SERVICE COMPANY, Appellee.
United States Court of Appeals Fifth Circuit.
June 19, 1963.
Allen Crowley, Fort Worth, Tex., John J. Watts, Odessa, Tex., for appellants.
John McBryde, Howard Barker, Fort Worth, Tex., for appellee, Cantey, Hanger, Gooch, Cravens & Scarborough, Fort Worth, Tex., of counsel.
Before TUTTLE, Chief Judge, and RIVES and MOORE,1 Circuit Judges.
This is an appeal from a judgment in defendant's favor entered upon a motion by defendant for summary judgment. Jurisdiction is based upon diversity and liability, if any, depends upon Texas law. Suit was brought to recover for injuries sustained when plaintiff's head came in contact with energized electrical wires while he was in the process of tacking numbers on defendant's electric poles. Plaintiff was employed, not by defendant, but by one Stovall, a subcontractor.
Affidavits submitted by plaintiff and his supervisor (employer) established that plaintiff should have known that the lines were energized and that his employer actually knew that they were so energized. Thus, plaintiff had no right to recover as a matter of law. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Gulf Oil Corp. v. Bivins, 276 F.2d 753 (5th Cir.); Nance Exploration Co. v. Texas Employers' Ins. Ass'n, 305 S.W.2d 621 (Tex.Civ.App.) err. ref., n.r.e., and since no factual issue existed, summary judgment was properly granted. Surkin v. Charteris, 197 F.2d 77, 79 (5th Cir.); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (2d Cir.).
Of the Second Circuit, sitting by designation