Johnston Testers v. Rangel

• Decision Date: 06 November 1968
• Docket Number: No. 14686,14686
• Citation: 435 S.W.2d 927
• Parties: JOHNSTON TESTERS, a Division of Schlumberger Well Surveying Corporation, Appellant, v. Jose RANGEL, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 927

435 S.W.2d 927

JOHNSTON TESTERS, a Division of Schlumberger Well Surveying Corporation, Appellant, v. Jose RANGEL, Appellee.

No. 14686.

Court of Civil Appeals of Texas San Antonio.

Nov. 6, 1968.

Rehearing Denied Jan. 8, 1969.

Perkins, Floyd, Davis & Oden, L. H. Warburton, Alice, for appellant.

William R. Edwards, David L. Perry, Lee Arnett, Corpus Christi, Arnold Garcia, Alice, Guy Allison, Corpus Christi, for appellee.

KLINGEMAN, Justice.

The opinion handed down on September 24, 1968, is withdrawn and the following is substituted.

Third party action by Jose Rangel, herein referred to as plaintiff, an employee of Sam Howell Drilling Company, against Johnston Testers, an oil field specialty company, herein referred to as defendant, for damages for injuries sustained by plaintiff while a specialized bottom-hole test was being performed on an oil and gas well being drilled by Sam Howell Drilling Company. Trial was to a jury and judgment entered for plaintiff in the total amount of $74,598.00, which included the sum of $56,160.00 for diminished capacity to work or earn money in the future; $3,600.00 for future medical services; $7,488.00 for diminished capacity to work or earn money from the time of the accident to the date of the trial; $6,500 .00 for pain and suffering, and $850.00 for medical services rendered to plaintiff up to the time of the trial.

Plaintiff was employed as a roughneck for Sam Howell Drilling Company and on the occasion of the accident was working for Howell on a well being drilled near Driscoll in Nueces County, Texas. Defendant was employed by Howell to perform a bottom-hole test on such well, and portions of the written contract in connection therewith were introduced into evidence. C. W. Belcher, an employee of defendant, was sent out to run the test. Such tests are used to determine flowing and bottom-hole pressure in a particular zone in the well and are performed with a specialized testing tool furnished by defendant. The testing tool is similar in appearance to a piece of drill pipe and is composed of different sections of pipe short enough to be hauled in a pick-up truck. Plaintiff was injured while the test tool was being prepared to run the test when a 'sub' fell from approximately 20 feet above him, striking him on the back and shoulders. A 'sub' is a section of pipe which is larger in diameter than the test tool and is utilized in picking up the test tool and lowering it into the well, and in such process the sub rests on the elevators of the rig like a shoulder. The elevators are operated by the driller of the drilling crew, and they pick up and lower the test tool into the well. The sub is ordinarily screwed on the test tool by tongs, which are like pinchers and which can exert a large amount of pressure, but in some instances such subs are screwed on by hand. While the test tool was being assembled and when the test tool was raised approximately twenty feet in the air, the sub 'backed off' (became unscrewed from the test tool) and fell striking Rangel.

Defendant first complains of error of the trial court in refusing to submit its special issue that the driller of the Howell crew allowed the elevators to apply pressure on the sub and that this was the sole proximate cause of the accident.

It is undisputed that the sub fell because of back-off, and the testimony establishes that back-off can only occur in three ways, to-wit: (1) failure to properly tighten the sub; (2) failure to unlatch the hook on the traveling block; (3) applying pressure on the lift sub. It is defendant's contention that the probable cause of the back-off was pressure being applied to the sub by the elevators as a result of failure to slack off. In support of this contention, defendant relies on testimony that failure to properly slack off the elevators could cause back-off and that such failure to slack off could have occurred in connection with this accident. However, there is no testimony in the record that such failure to slack off did occur. Belcher testified that he had observed the driller slack off when the test first started; that every time he looked, the elevators were properly slacked off, and that he never saw the driller fail to properly slack off the elevators. No witness who testified saw the driller fail to slack off the elevators at any time. There was testimony that a sub will not back-off it properly tightened. The testimony at the most showed only that the failure to slack off could cause back-off under some circumstances and that failure to slack off could have occurred . Testimony that something could have possibly occurred is no evidence that it did occur. Leatherwood Drilling Co. v. TXL Oil Corporation, 379 S.W.2d 693 (Tex.Civ.App.--Dallas 1964, writ ref'd n.r.e. In Ft. Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S.W. 1130 (Tex.Sup.1914), it was stated that 'A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved. 'No inference of fact should be drawn from premises which are uncertain. Facts upon which an inference may legitimately rest must be established by direct evidence, as if they were the facts in issue. One presumption cannot be based upon another presumption.' 16 Cyc. 1051; Mo.Pac.Ry. Co. v. Porter, 73 Tex. 304, 11 S.W. 324.' See also Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955). Under the record, the trial court did not err in failing to submit defendant's requested issue complained of in its first point of error.

By its sixth and seventh points of error, defendant complains that there is no evidence, or insufficient evidence, to support the jury's finding that Belcher's failure to tighten the joint was the proximate cause of plaintiff's injuries. The jury found that Belcher failed to properly tighten the joint and defendant does not complain of the finding. There is testimony that while subs are ordinarily tightened by tongs, in some instances they are tightened by hand. There was testimony that on the occasion of the accident Belcher tightened the sub only by hand. This testimony was contradicted by Belcher, who testified that tongs were used and that if the subs were put together only by hand they would not be tight enough and they wouldn't be safe to pick up. There was also testimony that a sub that wasn't properly tightened would back off, and that even with the elevators properly slacked off a sub will back off if it is loose. While the testimony is in some respects conflicting, the jury's findings are sufficiently supported by the evidence.

Defendant pleaded as an alternative defense that plaintiff was a special or borrowed employee of defendant and that his only remedy was provided under the Workmen's Compensation Law, and complains on this appeal that the trial court erred in excluding evidence of its right to control Howell's employees and in failing to submit to the jury defendant's requested issues on borrowed servant. We find no error of the trial court in this regard. It is to be remembered that this is a third party action where the defense is that the employee who has been injured has become the borrowed servant of another and that his exclusive remedy is under the Workmen's Compensation Act. It thus became incumbent on defendant to prove that the person injured was entitled to workmen's compensation benefits. One of the essential elements of proof is that workmen's compensation insurance existed. There is no evidence in the record that defendant was a subscriber under the Workmen's Compensation Law, and defendant did not offer any proof, either by bill of exception or otherwise, that it carried workmen's compensation insurance. In this connection, see Camco, Incorporated v. Evans, 377 S.W.2d 703 (Tex.Civ.App.--San Antonio 1963, writ ref'd n.r.e.). In view of defendant's failure to prove or offer proof of an essential element of such defense, the trial court did not err in refusing to submit defendant's requested issues on borrowed servant.

By supplemental point of error, defendant urges that if this Court were to hold that plaintiff was not a special or borrowed servant of defendant the legal effect of the contract between Howell and defendant was to impose a licenser-licensee relationship, and that under these circumstances there would be no duty to plaintiff. Under the record in this cause, we do not find any merit in this contention.

Defendant also complains of error of the trial court in refusing to submit to the jury its defense of volenti non fit injuria. Volenti is an affirmative defense based on a showing that the injured person has assented or agreed to the injury by choosing to encounter a known danger. It requires proof that plaintiff has knowledge of facts constituting a dangerous condition and that he voluntarily encountered the same as a result of intelligent choice. J. & W. Corporation v. Ball, 414 S.W.2d 143 (Tex.Sup.1967); Ellis v. Moore, 401 S.W.2d 789 (Tex.Sup.1966); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). The evidence viewed in the most favorable light to defendant shows only that there was some danger involved in running this type of test, but there is also some danger involved in any type of work on an oil rig. The evidence discloses that it was plaintiff's job, on this occasion, to operate the tongs used to tighten the...