Callihan Interests, Inc. v. Halepeska

• Citation: 349 S.W.2d 758
• Decision Date: 08 September 1961
• Docket Number: No. 3616,3616
• Parties: CALLIHAN INTERESTS, INC., et al., Appellants, v. Natalie K. HALEPESKA et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 758

349 S.W.2d 758

CALLIHAN INTERESTS, INC., et al., Appellants, v. Natalie K. HALEPESKA et al., Appellees.

No. 3616.

Court of Civil Appeals of Texas, Eastland.

Sept. 8, 1961.

Rehearing Denied Oct. 13, 1961.

McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellants.

Childers & Garrett, Abilene, Hill, Brown, Kronzer & Abraham, Houston, for appellees.

COLLINGS, Justice.

This suit was brought by Natalie K. Halepeska, individually, as independent executrix of the estate of Dennis L. Halepeska and as next friend and guardian of the surviving children of the plaintiff and Dennis L. Halepeska. Plaintiff sought to recover $450,000 from defendants Callihan Interests, Inc., a corporation, Ernestine Callihan Farnsworth and Edward L. Farnsworth. Recovery was sought for the alleged wrongful death of Dennis L. Halepeska, a consulting geologist for Callihan Interests, Inc., which occurred on or about December 17, 1958, on the Smith lease which belonged to defendants. Based upon certain findings of a jury and in disregard to other jury findings, upon motion for judgment non obstante veredicto, judgment was entered for the widow in the sum of $45,000 and in favor of the four minor plaintiffs in the total sum of $40,000. A take nothing judgment was entered in favor of Ernestine Callihan Farnsworth and her husband, Edward L. Farnsworth. Callihan Interests, Inc., has appealed.

Dennis L. Halepeska at the time of his death was thirty-seven years of age. He was a geologist and for several years was consulting geologist for numerous companies. In 1954 Halepeska was employed as a geologist by Callihan Interests, Inc. On or about March 1, 1958, Halepeska was made a vice president of Callihan Interests, Inc., and held that position until the time of his death on December 17, 1958. Prior to the time he became vice president, he had been a full time employee of the defendant corporation, but when, in the course of a corporate reorganization, he was made a vice president he was thereafter permitted to do work for other individuals and companies as a geologist. His skills and allegiance, when required, belonged to appellant corporation and his duties to such company when his services were required and called for remained identically the same as they had formerly been. Halepeska's duties with appellant corporation consisted partly of advising appellant as to the purchase value of leasehold interests. He also 'sat on wells' as they were being drilled, particularly when pay formations were encountered and when tests were being made. There was testimony to the effect that at such times he, as geologist, was in charge and that it was 'up to him' to tell the employees to the company what to do. Halepeska's duties required his presence on numerous occasions during the drilling and completion of oil and gas wells by appellant. He had been present on the Smith lease in Callahan County, where the fatal accident occurred, practically every day during the more than twenty days in 1955 when the gas well in question was being drilled and tested.

The well had been completed as a commercial producer. The evidence indicates that Halepeska knew the well had a bottom hole pressure of 1300 or 1400 pounds per square inch. From time to time it had been necessary to release the bottom hole pressure and to 'flow' or 'blow' the well. This process was also referred to as 'bleeding'. The well had been so treated on several occasions. A flow line consisting of two twenty feet joints of pipe had been added to the equipment of the well through which the gas could be permitted to escape. The evidence shows that Clark Howell and Emmett Price, who were employees of appellant corporation, had bled the well two days before the fatal accident. Halepeska and D. F. Morris, and employee and official of appellant corporation, were killed on the day in question while in the process of 'flowing' said well. There were no witnesses to the accident now living and the case was developed from conversations and activities preceding the accident and physical evidence found on the ground.

It was found by the jury that appellant was guilty of negligence in failing to sufficiently stake down the flow line in question and that such negligence was a proximate cause of the death of Dennis L. Halepeska. Numerous other issues concerning alleged negligence on the part of appellant were found in appellant's favor. The jury also found in response to special issues numbers 20a, 20b and 20c as follows: that just before the valves on the well were opened, in the exercise of ordinary care, Dennis Halepeska should have had full knowledge of the manner in which the well was equipped; that just before the time the valves were opened, in the exercise of ordinary care, dennis Halepeska should have appreciated the extent of the danger in opening said valves and that Dennis Halepeska voluntarily exposed himself to such danger, which in the exercise of ordinary care he should have known and appreciated. The jury had also found that Halepeska did not have full knowledge of the manner in which the well was equipped and did not appreciate the extent of the danger involved in opening the valve.

In appellant's first point it is urged that the court erred in granting plaintiffs' motion for judgment on the verdict and in disregarding the answers to special issues numbers 20a, 20b and 20c. In our opinion the point is well taken.

Assuming, as contended by appellees and as found by the jury, that Halepeska went to appellants' premises on the occasion in question as a business invitee, the rule is that the owner of premises is liable to an invitee only for injuries resulting from defects or conditions which are hidden and unknown. More specifically, an owner is not ordinarily liable to an invitee for failure to keep his premises safe insofar as open, obvious and known defects are concerned. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497; Hausman Packing Company v. Badwey, Tex.Civ.App., 147 S.W.2d 856, (Writ Ref.). It is held that when a 'plaintiff has brought himself within the operation of the maxim, Volenti non fit injuria, he cannot recover', 65 C.J.S. Negligence Sec. 174, p. 849. This doctrine is predicated upon the theory of knowledge and appreciation of danger and of voluntary assent thereto. To come within the doctrine it is required that the risk or danger must have been known to and appreciated by the plaintiff...