Amoco Production Co., Inc. v. Thompson
| Decision Date | 26 May 1983 |
| Docket Number | No. 2517-CV,No. 13-82-016-CV,2517-CV,13-82-016-CV |
| Citation | 657 S.W.2d 824 |
| Parties | AMOCO PRODUCTION COMPANY, INC., et al., Appellants, v. Terry THOMPSON and Ideal Lease Service, Inc., Appellees. |
| Court | Texas Court of Appeals |
James B. Galbraith, McLeod, Alexander, Powel & Apffel, Galveston, for appellants.
Ernest H. Cannon, Robert C. Floyd, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.
Before BISSETT, YOUNG and KENNEDY, JJ.
OPINION ON MOTION FOR REHEARING
On Motion for Rehearing, we withdraw our opinion of April 7, 1983, and issue this one therefor.
This is a suit initiated by appellee Terry Thompson ("Thompson") against appellant Amoco Production Company, Inc. ("Amoco") and appellee Ideal Lease Service, Inc. ("Ideal") to recover for injuries sustained by him while working as a welder at facilities operated by Amoco. In response to special issues, the jury found acts of Amoco to be both negligence and proximate causes of Thompson's injuries. Thompson was found to be free of all fault, and the entire cause of the injury was laid at the door of Amoco. These findings are not questioned. For reasons hereinafter enumerated, we affirm in part and reverse and remand in part.
The incident made the basis of the suit occurred on December 29, 1980, in Bay City, Texas, when Thompson struck his welding torch and gas vapors that had accumulated in the area flashed, burning him. Thompson was an independent, self-employed welder whose services for Amoco on that day had been arranged by Ideal. Amoco filed its cross-action against Ideal, seeking contractual indemnity in the event of a recovery of damages by Thompson. The special issues submitted on the cross-action were answered favorably to Ideal, and no relief was allowed on the indemnity claim.
In its first point of error, Amoco contends that the trial court erred in denying its motion for continuance. Numerous factual averments are made in that motion. It is notarized and states that the attorney for Amoco "... on his oath states that he has read the above Motion for Continuance ... and based on his information and belief, the allegations and statements contained therein are true and correct." (Emphasis supplied.)
Rule 251, Tex.R.Civ.P.Ann. (Vernon 1976), provides:
"[N]or shall any continuance be granted except for sufficient cause supported by affidavit...."
The applicable standard for reviewing the trial court's denial of a motion for continuance is abuse of discretion. Zamora v. Romero, 581 S.W.2d 742, 745 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). A statement made by an attorney on "information and belief" does not meet the requirement of Rule 251 that the motion for continuance be supported by affidavit. Bray v. Miller, 397 S.W.2d 103, 106 (Tex.Civ.App.--Dallas 1965, no writ). See Nutter v. Abate Cotton Harvesting Co., 430 S.W.2d 366, 368 (Tex.Civ.App.--El Paso 1968, writ ref'd n.r.e.). Where the requirement of the rule that motions be supported by affidavit is not met, we must presume that the trial court did not abuse its discretion. Zamora v. Romero, supra, 581 S.W.2d at 746. Amoco's first point of error is overruled.
In Amoco's second point of error, complaint is made concerning the trial court's "permitting" Thompson to file an amended original petition on the morning of trial. The amending of pleadings is governed by Rule 63 of our Rules of Civil Procedure, wherein it reads:
"Parties may amend their pleadings ... provided, that any amendment offered for filing within seven days of the date of trial or thereafter ... shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party." (Vernon 1979) (emphasis supplied).
It should be noted here, as was done in Jones v. Houston Materials Co., 477 S.W.2d 694 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ), that it does not affirmatively appear from the record that leave of the trial court was obtained, although such filing is apparent in the record and the recorded instrument is contained in the transcript before this Court. Similarly, the record reveals no objection by Amoco to the filing of an amended pleading, and no motion to strike. Id.
The trial court has wide discretion in allowing the filing of amended pleadings, subject to review upon a showing of an abuse of that discretion. Alcazar v. Southwestern Bell Telephone Co., 353 S.W.2d 933, 935 (Tex.Civ.App.--Austin 1962, no writ). There is no abuse of discretion absent a claim of surprise. Id. No such claim is indicated by the record before us. Amoco's second point of error is overruled.
In points of error three through eighteen, Amoco complains of various acts of the trial court and findings of the jury relating to its cross-action against Ideal for indemnity. That claim is predicated upon paragraph ten of the Well and Lease Service Master Contract entered into between Amoco and Ideal, wherein it reads:
Regarding Amoco's claim for indemnity, the special issues were submitted, over Amoco's objections, and answered thusly:
SPECIAL ISSUE NO. 14
Do you find from a preponderance of the evidence that at the time of the accident Terry Thompson was acting as a sub-contractor for Ideal Lease Service or as an independent contractor for Amoco?
A "subcontractor" means a person who has agreed to perform work under an existing contract. A subcontractor may be an independent contractor.
An "independent contractor" means a person who, in the pursuit of an independent business, works for another person using his own methods without submitting himself to the control of others with respect to the details of his work, and represents the will of such other person only as to the results of his work and not as to the means by which it is accomplished.
Answer "subcontractor" or "independent contractor" or "neither."
Answer: Independent contractor
Do you find from a preponderance of the evidence that at the time of the accident Ideal Lease Service was performing work pursuant to the terms and conditions of the written contract?
* * *
* * *
Answer "We do" or "We do not."
In order for an indemnity agreement to protect an indemnitee from the consequences of its own negligence, the obligation of the indemnitor to do so need not be stated in so many words, but must be expressed in clear and unequivocal terms. Firemen's Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818, 822 (Tex.1973); Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559, 561 (Tex.1972); Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.1972). The "clear and unequivocal" requirements are satisfied by the indemnity clause presently before us.
Points of error seven through ten complain of the trial court's refusal to submit two issues requested by Amoco, and of the submission of special issues fourteen and fifteen in their stead. We are of the opinion that these points are meritorious and necessitate a new trial.
The refused issues read:
"Do you find from a preponderance of the evidence that on the occasion in question Terry Thompson was a Subcontractor of Ideal Lease Service, Inc.?
Answer 'We do' or 'We do not.'
Do you find from a preponderance of the evidence that the occurrence in question arose out of or was incident to or in connection with any operation under the contract between Amoco Production Company and Ideal Lease Service, Inc.?
Answer 'We do' or 'We do not.' "
Each party to litigation is entitled to have controlling issues submitted which are supported by the evidence and are essential to its theory of the case and which properly present fact issues raised by the pleadings. Union Carbide Corp. v. Burton, 618 S.W.2d 410, 415 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). A "controlling issue" is one essential to the right of action. Fidelity & Casualty Co. of New York v. Jefferies, 545 S.W.2d 881, 885 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). Stated another way, a "controlling issue" is a question which inquires as to the truth of a proposition of fact which constitutes a component element of a ground of recovery or of defense, and which, when answered, would have an effect upon the judgment. Atchison, Topeka & Santa Fe Ry. Co. v. Mahon, 473 S.W.2d 598, 609 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.).
There was considerable testimony elicited at trial concerning the Well and Lease Service Master Contract upon which Amoco's claim is based and the course of dealings between Amoco and Ideal pursuant thereto. This evidence conclusively established that no representatives of Ideal were at the site of the accident at the time of the occurrence, and that Ideal was playing no role in the work being done,...
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