Callihan Interests, Inc. v. Halepeska

• Decision Date: 13 March 1964
• Docket Number: No. 3616,3616
• Citation: 376 S.W.2d 932
• Parties: CALLIHAN INTERESTS, INC., Appellant, v. Natalie K. HALEPESKA et al., Appellees.
• Court: Texas Court of Appeals

Page 932

376 S.W.2d 932

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

No. 3616.

Court of Civil Appeals of Texas, Eastland.

March 13, 1964.

Rehearing Denied April 3, 1964.

McMahon, Smart, Sprain, Wilson & Camp, J. M. Lee, Abilene, for appellant.

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

COLLINGS, Justice.

This action was brought by Natalie Halepeska and her children seeking to recover for the wrongful death of their husband and father, who was killed in the 'blowing' of a gas well on a lease belonging to appellant Callihan Interests, Inc. Based upon a verdict judgment was rendered for the widow and the four minor children.

Upon an appeal of the case this court, heretofore, on September 8, 1961, reversed the judgment and rendered judgment for appellant, holding that where the decedent, an independent geologist, a vice-president of the owner of the lease and whose duties often required his presence during the drilling and completion of oil and gas wells should have known that the flow line which was in plain sight was not sufficiently staked, should have appreciated the danger in opening the valves to blow the wells and voluntarily exposed himself to the danger and was killed while the well was being blown, the owner was not liable regardless of whether the decedent or an accompanying employee of the owner opened the valve. This opinion is reported in 349 S.W.2d 758.

The judgment of this court was reversed by the Supreme Court of Texas in an opinion reported in 371 S.W.2d 368. It was held by the Supreme Court that the questions of whether the deceased Halepeska should have known of the manner in which the well was equipped and should have realized the danger involved had no bearing on whether recovery was barred under the 'no duty' or 'volenti' doctrines, and that the jury findings for the defendant on such questions could not support a judgment for the defendant based on contributory negligence in the absence of a finding of proximate cause.

The findings of the jury upon which the trial court judgment was based were, in effect, that appellant Callihan Interests, Inc. failed to sufficiently stake down the flow line; that such failure was negligence and a proximate cause of Halespeska's death; that Halepeska was a business invitee on appellant's lease and an independent geologist. The Supreme Court found that there was some evidence to support these findings.

The cause...