Jefferson Const. Co. v. Goodyear Tire & Rubber Co.
| Decision Date | 26 May 1977 |
| Docket Number | No. 7950,7950 |
| Citation | 552 S.W.2d 596 |
| Parties | JEFFERSON CONSTRUCTION COMPANY, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Kyle Wheelus, Jr., Beaumont, for appellant.
William B. Coffey, Jr., Beaumont, for appellee.
This is an action for indemnity and/or contribution. Trial was before the court, and judgment rendered allowing full indemnity.
Jose Negrete, an employee of Jefferson Construction Company (Jefferson), was injured while working on the premises of Goodyear Tire and Rubber Company (Goodyear). Negrete was paid his workman's compensation and then filed an action for damages against Goodyear. The allegations in his petition included the failure to furnish him a safe place to work. Goodyear filed this third party action against Jefferson, settled with Negrete, and amended its pleadings against Jefferson to recover the amount of the settlement with Negrete.
The allegations of negligence in Negrete's petition on the part of Goodyear were, in brief, as follows: Plaintiff, a pipefitter, while cutting a pipe with an acetylene torch, bumped a quick opening valve causing it to open and allow a highly flammable liquid to pour over Negrete's body and catch fire. The allowance by Goodyear for the valve to be located on a line used for flammable liquid was negligence per se. Goodyear's allowing flammable liquid to remain in the pipes in the vicinity of Negrete's work was negligence per se. It is noted these allegations of acts of negligence were solely on the part of Goodyear, and not jointly with Jefferson.
The undisputed evidence shows: Jefferson had been doing maintenance work for Goodyear since 1961. From that date through December 8, 1972 (date of Negrete's injury), Goodyear had issued monthly purchase orders to cover such work. The indemnity provision sued upon was contained in the purchase order dated November 29, 1972. Such purchase orders were the contracts between these parties and were mailed by Goodyear to Jefferson who would continue to work on the old monthly purchase order until the new one was received. The purchase orders are printed forms, apparently designed primarily for the purchase of goods. On the front page of the purchase order made the basis of this suit is a space into which is typed:
"Furnish supplemental maintenance labor for the month of December, 1972 as required by our Engineering Department, on the following basis: PRICE BASIS."
Then typed into the purchase order are twelve items marked from A-L indicating how the amount of money to be due would be arrived at. The end result is that Jefferson is paid on a cost-plus basis. On the reverse side of the first page purchase order are twenty-one paragraphs in fine print under the heading "Terms and Contributions". Paragraph 13(f) of such purchase order reads as follows:
"To the extent that this Purchase Order provides that Seller will indemnify, save harmless and defend Purchaser from liability, claims, demands or suits, it is the intention of Seller that such indemnity shall apply whether or not the liability, claims, demands or suits arise from the negligence of Purchaser."
There is a second sheet to the purchase order made the basis of this suit which is the identical printed form as the first sheet. On the second sheet there are five paragraphs typed into the empty space, the fifth paragraph reading as follows:
"Contractor to carry public liability insurance...
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Goodyear Tire & Rubber Co. v. Jefferson Const. Co.
...court rendered judgment granting the requested indemnity. The court of civil appeals reversed and rendered judgment denying indemnity. 552 S.W.2d 596. We hold that Goodyear was entitled to indemnity under the contract, and accordingly reverse the judgment of the court of civil appeals and a......