Allbritton v. SUNRAY OIL CORPORATION

• Decision Date: 16 December 1949
• Docket Number: No. 4522.,4522.
• Parties: ALLBRITTON v. SUNRAY OIL CORPORATION.
• Court: U.S. District Court — Southern District of Texas

88 F. Supp. 54

ALLBRITTON v. SUNRAY OIL CORPORATION.

No. 4522.

United States District Court S. D. Texas, Houston Division.

December 16, 1949.

J. Edwin Smith, Houston, Tex., for plaintiff, George E. Cire, and Allen, Smith & Neal, Houston, Tex., of counsel.

Vinson, Elkins, Weems & Francis, C. E. Bryson, Gene Woodfin, all of Houston, Tex., and Angus G. Wynne and Philip Brin, of Longview, Tex., for defendant.

MARTIN, Circuit Judge.

In this action for damages for personal injuries, tried to a jury under special issues of fact, the verdict of the jury found the material issues in favor of the plaintiff and assessed his damages at $125,000. Judgment was entered on the verdict of the jury for that amount against the defendant, Sunray Oil Corporation, which has moved (1) for a judgment non obstante veredicto; (2) for a new trial; and (3) for a remittitur of the damages. The trial judge has been afforded the benefit of helpful extensive oral arguments, both upon the law and upon the facts, and has considered also the carefully prepared briefs and the authorities therein cited which have been submitted by the able attorneys for both sides.

First, a brief summary of the facts would seem appropriate. The plaintiff, G. A. Allbritton, was an employee of Oil Production Maintenance, Inc., which company made a contract in February, 1947, to do certain repair work on the Barber-C-1 oil well operated by Sunray Oil Corporation. The machinery and the rig necessary to do the repair work were furnished by Oil Production; but Sunray's derrick, which was already in place over the well, was used in the work. The derrick was erected about 1934 and was designed to lift a load of 175,000 to 180,000 pounds.

Allbritton worked on the Barber-C-1 well under the supervision of Oil Production's driller, Everett. Everett received his orders from Oil Production's tool pusher, Colvin. Wyatt was Oil Production's superintendent. Myrick, Sunray's field superintendent, told Oil Production's crew what work to do, and gave his orders to Oil Production's tool pusher most of the time. He gave the same kind of orders to Oil Production's crew that he gave to his own crew. He directed Oil Production's crew to pull out of the hole; to pick up 2- 7/8 inch pipe and clean it; to try to circulate; to reverse and circulate; to put El Paso Clay, Baroid and Aquagel into the well; to mill the top of the fish, and when to quit; to try to screw on to the fish; to use mud of a particular viscosity and weight; to get a small taper tap; and to pull only 80,000 pounds.

Cockrell, the President of Oil Production, testified that his crew would obey all of Sunray's orders having to do with the workover of the well, although they would obey the orders of Oil Production's supervisor as to matters concerning Oil Production's machinery. On February 24, 1947, the derrick collapsed and one of the legs struck plaintiff, causing him severe and permanent personal injuries.

The derrick had been inspected some time in 1936 by rig builders. About a year before the collapse of the Barber-C-1 derrick, there had been a storm in that area which blew over another derrick within 200 feet of it. The derrick which was blown down was built on a wooden foundation. Myrick testified that from the time the first derrick was blown over until the Barber-C-1 derrick collapsed no detailed mechanical inspection by experts had been made of the Barber-C-1 derrick, although new guy wires had been put on it. Johnson, head roustabout for Sunray, testified that the bolts on Barber-C-1 derrick were tightened after the nearby derrick was blown over. He stated further that he inspected the derrick after the bolts were tightened, and saw no loose or rusty bolts or deterioration of the legs. Myrick gave testimony that when the blown-over derrick was rebuilt, the crew tightened up loose joints on other derricks; and that he inspected the Barber-C-1 derrick with Wyatt, Oil Production's Superintendent, before Oil Production started working on the well.

Wyatt said on the witness stand that he made the usual and customary inspection to see if the derrick was safe; that he was looking for defects and that the only defect he saw was the bent gin pole; and that the derrick appeared to him to be safe. He stated that he just looked the derrick over and did not have any one look into it and inspect the joints. He admitted that he could not have discovered rusty bolts unless he had gone up into the derrick.

On the morning after the Barber-C-1 derrick collapsed, Bruce Allbritton, the plaintiff's brother, inspected it. He testified: "The bolts from the bottom of the first starting leg up where they goes together, those bolts were pretty rusty; in bad shape. The piece that goes around the derrick leg was rusted bad, and the bottom piece that sets down on the piece there — was — in places you could stick a match through it." He said that this bottom piece was "low on the concrete foundation, where it was bolted into the leg of the derrick." He made the further assertion: "This leg is down on this plate. This plate right in here for the other, that was eat up." Questioned further, he answered that the plate was eaten up with rust, and pointed out: "Up here as this other leg comes in about nine or twelve feet up; it is between ten and twelve feet to the next leg starts again, this place right in here where these bolts are was rusted, and the plate behind the leg was rusted out."

Myrick testified that he examined the derrick after it had collapsed, that he couldn't find any defect in it; and that he saw no rust on the derrick leg. He stated that the pieces above the plate had broken, that this was a new break; and that he could not see any deterioration in the material. Johnson, head roustabout for Sunray, stated in his deposition that he examined the derrick after it had collapsed and found the legs on the draw works side buckled, but that they were not rusted. He added that neither of the legs on the side away from the draw works was rusted; that he cut up the derrick with an acetylene torch and saw no rust on it; that some of the braces were broken, and that they were all new breaks.

In consequence of being pinned down by one of the derrick legs, plaintiff suffered a broken back and a punctured lung. He is now permanently disabled from doing manual labor. Prior to his injury, plaintiff was earning $1.10 an hour. As to his monthly earnings, plaintiff testified: "Well, during the last part of the war we were working twelve hours a day, each one of us, because they were short of men. My check run up pretty high. Every fifteen days, about $225.00. Of course when they got plenty of help, they put on another crew and cut it down some. It would run about $200.00 then." He swore that his earnings were "a little better than $400.00 per month." He is now doing part time work in a filling station, earning about $90 a month. His injuries will be detailed later. Suffice it now to say that Dr. Tyner, a physician and radiologist who made examinations of plaintiff, testified that Allbritton should not pick up tires and that he shouldn't be working in a filling station at all. Dr. Barker, an orthopedic surgeon, testified that plaintiff's disability is permanent and total.

Defendant depends primarily upon the harsh rule established in Southern Oil Co. v. Church, 1903, 32 Tex.Civ.App. 325, 74 S.W. 797, which declares the existing Texas law concerning the duty of one who furnishes an instrumentality to be used by an independent contractor. That case has been cited numerous times by the Texas Courts of Civil Appeals, which have stated that it represents settled Texas law. For example, see North American Dredging Company v. Pugh, Tex.Civ.App., 196 S.W. 255, 256; and Pittman v. City of Wichita Falls, et al. Tex.Civ.App., 120 S.W.2d 847. If the facts of the case at bar do not distinguish it from Southern Oil Co. v. Church, the defendant would be entitled to a judgment non obstante veredicto, inasmuch as there is no evidence that the defendant knowingly furnished a defective derrick to the Oil Production Co. However, it was emphasized in the Southern Oil Co. decision that the defendant retained no control of any kind over the independent contractor in the performance of his work, and that the oil company had no control whatever over the plaintiff who was an employee of the independent contractor. The opinion repeated that the Southern Oil Company "had no control or supervision over Hammil Bros. or their men at the time that the accident occurred." 32 Tex. Civ.App. 325, 74 S.W. 798 The court stated: "The oil company, however, by its contract with Hammil Bros., reserved the right to exercise some control over Hammil Bros. when oil sand should be reached by the drill. This condition had not arisen at the time that the plaintiff was injured." (Emphasis supplied.)

The defendant's attorneys stress the fact that the Court of Appeals for the Fifth Circuit has recognized that it is still the law of Texas that one who employs an independent contractor to do certain work owes the latter's employees only "the duty of exercising ordinary care not to furnish them appliances that are known by him to be inherently dangerous." Sun Oil Co. v. Kneten, 5 Cir., 164 F.2d 806, 809. Even so, it should be observed that, in the case cited, a judgment in favor of the employee of the independent contractor against the employer of the independent contractor was upheld. Furthermore, the Court of Appeals stated: "If the employer of the independent contractor reserves the right of supervision and control and the right to direct the manner in which the servants of the independent contractor perform their work, he is under the duty to exercise reasonable care for their safety * * *."

In the instant case, Myrick testified that he had almost complete control over Oil Production's crew. He gave the same kind of instructions to that crew as he had given to his own crew;...