Freitas v. Twin City Fisherman's Co-op. Ass'n

• Court: Texas Civil Court of Appeals
• Writing for the Court: TIREY; WILSON
• Citation: Freitas v. Twin City Fisherman's Co-op. Ass'n, 430 S.W.2d 579 (Tex. Ct. App. 1968)
• Decision Date: 27 June 1968
• Docket Number: No. 4705,4705
• Parties: Manuel P. FREITAS et al., Appellants, v. TWIN CITY FISHERMAN'S COOPERATIVE ASSOCIATION et al., Appellees. . Waco

Page 579

430 S.W.2d 579

Manuel P. FREITAS et al., Appellants, v. TWIN CITY FISHERMAN'S COOPERATIVE ASSOCIATION et al Appellees.

No. 4705.

Court of Civil Appeals of Texas Waco.

June 27, 1968.

Joseph D. Jamail, Houston, and Warren Burnett, Odessa, for appellants.

Rentfro & Rentfro, Brownsville, john Stayton McGinnis, Lochridge, Kilgore, Bufield, Hunter & Wilson, Austin, John E. Lewis, Adams, Graham, Lewis & Graham, Harlingen, Wiech, Lewis & Pipkin, Brownsville, Bascom Cox, Cox, Wilson, Duncan & Clendenin, Brownsville, for appellees.

OPINION

TIREY, Justice.

This is a negligence case. Plaintiff Freitas brought the action against Twin City Fisherman's Cooperative Association and the Gulf Oil Corporation and alleged that each of the appellees breached a warranty and further that they were guilty of negligence concerning a ladder, walkway and platform on appellees' premises and fuel tank, and that such negligence proximately resulted in serious injuries and damages to him. The Aetna Casualty & Surety Company intervened against appellees for workman's compensation benefits that it had previously paid to Freitas. These matters were stipulated. The Gulf Oil Corporation sued Twin City Fisherman's Cooperative for indemnity and Twin City Fisherman's Cooperative Association responded with a cross-action against Gulf Oil Corporation for indemnity or contribution. At the close of all the evidence the court instructed the jury to return a verdict for the defendants and against plaintiffs and accordingly entered judgment for the defendants and against plaintiffs, and the plaintiffs and intervenor have perfected their appeal to the Corpus Christi Court and the cause is here on transfer.

The judgment is assailed on 9 points.

Points 1 through 5 complain substantially that the court erred in withdrawing the case from the jury and instructing the jury that plaintiff, Freitas, take nothing against Twin City Fisherman's Cooperative Association and Gulf Oil Corporation. We sustain these contentions and reverse the cause for reasons hereinafter noted.

In passing upon the foregoing points we are bound by the Rule announced by this court in Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511 (w. ref.). We must consider the whole of the testimony in the light of all the surrounding facts and circumstances, and in so doing the Rule as to an instructed verdict is:

'Where the facts are controverted, or are such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised 'if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." Citing many cases.

The Supreme Court has never changed or modified the foregoing Rule . At the same time we must bear in mind our Supreme Court has said that the duty or care owed by a landowner or occupier to an invitee is to keep his premises in a reasonably safe condition for invitees. This includes the duty to use reasonable care to inspect the premises to discover dangerous conditions and to warn of dangers that are not open and abvious. See Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Sup.Ct.); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 and Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425. It is also our duty to keep in mind that with reference to invitees such owners are not the insurer of the safe condition of their premises, and that mere injury to an invitee on the premises is not of itself enough to allow the invitee to recover from the landowner. It must be shown in some way that the landowner breached his duty of care to the invitee. Fort Worth & D.C. Ry. Co. v. Hambright, Tex . Civ.App., 130 S.W.2d 436 (wr. ref.) judgment correct. Scheps v. La Rose, Tex.Civ.App., 88 S.W.2d 557 (n.w.h.). See also Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374.

Going back to the testimony, it is our duty to consider the evidence in the light most favorable to the plaintiff, disregarding all conflicts in the evidence and indulging every intendment and inference reasonably deducible from the evidence in favor of the plaintiff and against the instructed verdict and the judgment of the court. See White v. White, 141 Tex. 328, 172 S.W.2d 295; Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422; Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121. We think the effect of the foregoing cases cited is to hold that the controlling question here before us is whether there is any evidence in the record which would, if accepted by a jury, have raised an issue of fact which would have supported a judgment for the plaintiff.

The evidence is to the effect that on the night of December 15, 1962, the plaintiff, who was an employee of Coastal Transport, Inc., was delivering fuel of the Gulf Oil Corporation to Twin, City Fisherman's Cooperative Association, Inc., and while thus engaged as a business invitee upon the appellees' premises, sustained serious injuries when he encountered a dangerous and unsafe condition that was neither known to him nor open and obvious on the appellees' premises. The evidence is without dispute that plaintiff received his injuries while in the discharge of his duties, and while he was descending a ladder, which ladder was designed, manufactured and installed by the appellees for the use of the invitees engaged in the use of the storage tank. Evidence was tendered to the effect that the ladder leading from the platform on which the tank was constructed was unattached to the tank or ground, and that while the plaintiff was descending from the tank the ladder lurched to the right side, throwing plaintiff off and down to the ground; that the tank, platform and ladder were designed, manufactured and constructed and were being used at this particular place by Gulf and at its discretion on land owned and occupied by Twin City. The tank, platform and ladder were jointly used by Gulf and Twin City for the purpose of facilitating Gulf's sale, delivery and storage of fuel to Twin City. The ladder, platform and tank were in the same condition without material change on the date of the injury as they were manufactured, designed and installed originally. The condition of the ladder was known to Twin. Gulf put the fuel so sold and delivered to Twin City into the bank. Twin City used the fuel it so bought and sold out of the tank. At the time plaintiff received his injury he was making this fuel delivery and he was the business invitee of both Gulf and Twin City, furthering both their business interest at the time of the injury. As we understand the rule the plaintiff was the one to whom Twin City, as well as Gulf, owed the duty of ordinary care to keep the premises where plaintiff was at the time of the injury in reasonably safe condition for his use and to warn him of the dangers that were not open and obvious, and that since the ladder was unattached to the tank or platform it might lurch or fall in plaintiff's use thereof. It is our view that appellees breached these duties to plaintiff's injury. Since Gulf Corporation designed, manufactured and assembled and supplied the tank, platform and ladder involved here on the night of December 15, 1962, it owed a duty to exercise ordinary care in the manufacture, design and supply of such facilities which Gulf should have recognized as involving an unreasonable risk of causing harm to those who used it for the purpose for which it was manufactured, and to those whom the suppliers with knowledge of its condition should expect to be in the vicinity of its reasonable and probable use. We think these duties were breached by Gulf and Twin City and resulted in plaintiff's injury under the doctrine announced in Robertson v. Rig-A-Lite Company, Inc., Tex.Civ.App., 394 S.W.2d 838; International Derrick and Equipment Co. v. Croix, Texas Emp. Ins. Ass'n, Intervenor, 5th Cir., 241 F.2d 216; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99. We think the testimony tendered under all the facts and surrounding circumstances was sufficient to raise the issue that the ladder and platform should have been designed and made by appellees, and particularly Gulf, in such way that it was attached or fastened to the tank itself or to the ground sufficiently that it would be firm in its ordinary and customary use, and also the use being made of it by plaintiff at the time he received his fall or injuries. We have carefully considered the opinion of the Court of Civil Appeals in Humble Oil & Refining Co. v. Whitten, 415 S.W.2d 287, and the opinion of the Supreme Court in the same cause reported in Vol. 11, No. 29, of the Supreme Court Journal dated April 20, 1968, 427 S.W.2d 313, and as we understand the opinion of the Supreme Court in this cause it is distinguished from the Rule in Ellis v. Moore, Tex., 401 S.W.2d 789, on the ground that there was a new and independent cause which supersedes Humble's act of negligence. Neither appellee should have permitted its continued existence and use in its movable and unattached condition to continue from the time of its installation and up to the time of plaintiff's injury. Since both appellees had invited plaintiff on the premises each was under a duty to remedy the condition and to warn him of the unattached condition of the ladder and platform and its threat of injury to him. Evidence was tendered to the effect that similar ladders in similar construction and use on such tanks are so anchored and attached as to render them firm, rigid and safe in their use. We think the failure of...