Lubbock Mfg. Co. v. Perez

Decision Date18 October 1979
Docket NumberNo. 5965,5965
Citation591 S.W.2d 907
PartiesLUBBOCK MANUFACTURING COMPANY, Appellant, v. Francisco Pena PEREZ, Jr., et al., Appellees.
CourtTexas Court of Appeals

JAMES, Justice.

This is a suit for personal injuries and wrongful death, involving "strict liability" as well as "negligence" grounds of recovery. In the trial court 32 suits were brought against Appellant Lubbock Manufacturing Co. and others, all of which were consolidated and tried as one lawsuit. The claims arose from an explosion and fire which resulted from the overturning of a liquefied petroleum gas (LPG) transport vehicle in Maverick County, Texas.

Appellant Lubbock Manufacturing Co. designed and manufactured the tank-trailer portion of the vehicle, and sold same in the year 1965.

On April 29, 1975, at or about 4:15 P.M., Jesus Verduzco was driving a tractor-trailer westbound in the right lane of U.S. Highway 277 entering the city of Eagle Pass, Texas. He was acting in the course and scope of his employment by and for Surtigas, S.A., a Mexican Corporation, the owner of the tractor-trailer at the time of the accident. The tractor was equipped with a "fifth wheel" manufactured by Fontaine Truck Equipment Co., a division of Altamil Corporation.

The trailer was designed, manufactured, and assembled by Appellant Lubbock Manufacturing Co. Lubbock sold the trailer in September 1965 to one Uranga who in turn soon thereafter sold it to Surtigas. Said trailer was designed and manufactured for the transport of liquefied petroleum gas (butane and/or propane), with a water capacity of 10,000 gallons. The tank was its own chassis. The tank-trailer had been filled to 90% Capacity (9,000 gallons of LPG) in Big Wells, Texas, and Verduzco was transporting the load to the Surtigas plant in Mexico by way of Eagle Pass, Texas. As Verduzco was proceeding west on Highway 277 in the outskirts of Eagle Pass, a white or light-colored car (which was never located after the accident) either turned to enter an auto repair garage or else came out of the area in front of the garage onto the highway. At any rate the white car loomed up suddenly and unexpectedly in front of Verduzco and in his lane of traffic; whereupon, Verduzco turned the tractor to his left and applied his brakes, and then, almost immediately after at least the tractor was in the eastbound lane of this two-lane highway, Verduzco turned back to his right to avoid oncoming traffic, which brought about the overturn of the tank-trailer. There was conflicting testimony as to whether the tractor also overturned. It is undisputed that the "fifth wheel" broke. The fifth wheel is the device by which the tank-trailer is connected up with the tractor.

The tank-trailer turned over onto its left side and then rolled and skidded off the highway for a distance of some 108 feet, at which point said tank-trailer struck a corner of a one foot thick steel reinforced concrete wall, which stood about 27 inches above ground level. This was the headwall of an irrigation canal which ran in a general north-south direction and which canal ran under the highway. The force of the impact, combined with the rotating motion, gouged and punctured the steel shell of the tank, allowing the release of the pressurized LPG. After its escape, the LPG was ignited from some unknown source, thereby resulting in an explosion and large ball of fire which fragmented the tank into four main parts. This fire and explosion together with secondary fires caused burns in varying degrees to about fifty persons, sixteen of whom died immediately or at varying times during the ensuing days and weeks. Apparently, driver Verduzco died immediately as the result of a crushed skull, his body having been recovered thereafter from the irrigation canal a considerable distance south of the highway.

As stated, these suits were originally filed in the District Court of Maverick County against seven defendants, upon theories of recovery based upon allegations of negligence and strict tort liability. Defendants filed cross claims against each other for indemnity and/or contribution, except none were filed by or against Sames as Administrator of the Estate of Jesus Verduzco (who was also a plaintiff) or the heirs of Verduzco. Pleas of privilege filed by three of the defendants were sustained, leaving four defendants in the cases at the time they were consolidated, to wit: Lubbock Manufacturing Co. (designer and manufacturer of the LPG tank-trailer), Surtigas, S.A. (owner and operator of the tractor and trailer), Fontaine Truck Equipment Co. (manufacturer of the fifth wheel connecting the tank-trailer to the tractor), and William Sames, Administrator of the Estate of Jesus Verduzco, Deceased (Surtigas's driver).

Prior to jury selection, the liability insurance carrier for Surtigas unconditionally and gratuitously tendered its policy limits in the amount of one million dollars into the registry of the court to be distributed in any way the court considered fair and just, regardless of the jury verdict or liability. After the conclusion of the trial, the trial court ordered the Clerk to disburse this $1,000,000.00 to the plaintiffs on a certain pro-rata basis, not in issue here. Surtigas remained a defendant in the case because the insurer's tender of its policy limits simply protected the insurer from excess liability and did not remove the danger of a verdict against Surtigas in excess of its insurance coverage.

Also on October 5, 1977, immediately prior to trial, Defendant Fontaine and the Plaintiffs filed joint motions to sever Fontaine as a defendant, saying they had agreed upon a compromise settlement and that a severance was necessary so that their respective agreements could be consummated into final judgments. These motions were granted by the trial court; and pursuant thereto, separate cause files were prepared for each of the thirty-two suits. In these severed causes, the trial court rendered judgments against Fontaine totalling over $5,000,000.00, said judgments having been entered over a period of time during the trial of the main case as settlement agreements with the various plaintiffs had been respectively consummated. Fontaine eventually settled with all but two of the plaintiffs. Fontaine of course remained in the main case as a defendant because each of the other defendants (except Sames, Administrator) had cross-acted with each other for contribution and/or indemnity.

Because of the possibility of pre-trial publicity, this consolidated suit from which this appeal is taken was transferred after hearing by the trial court from Maverick County to Val Verde County, under the provisions of Rule 257, Texas Rules of Civil Procedure. No complaint is made by any party concerning this transfer.

As stated before, this consolidated suit as of the time it went to trial consisted of thirty-two suits against four defendants, to wit, Lubbock, Surtigas, Fontaine and Sames, Administrator for (driver) Verduzco. After ten weeks of trial and two additional weeks of jury deliberation, the jury returned its verdict. Pursuant to the jury verdict and after the trial court had acted upon several post-verdict motions (some of which will be more particularly hereinafter dealt with), the trial court rendered judgments against Defendant-Appellant Lubbock totalling $14,723,969.00. Defendant-Appellant appeals from 14 of those judgments (plaintiffs' suits) totalling $2,672,317.00.

Taking into account the plaintiffs' judgments from which Lubbock appeals, together with cross points of error asserted herein, the parties to this appeal are:

(1) Plaintiff-Appellees (some of whom have filed cross points):

Francisco Pena Perez

Jesus Valdez Estrada

Mario H. Torres

Robert G. Davis

Eugenio Cruz

Jesus Maldonado and San Juana Maldonado

Daniel Pena

Elvira Valdez, Individually and as Next Friend of Mariano Valdez, a minor

Charles James Puente

Gilberto Oyervides and Eloisa M. R. Oyervides, Individually and as Next Friends of Omar Ali Oyervides, a minor

Antonio Garza
Gerado Carrillo
Humberto Longoria and Dolores Longoria, Individually and as Sole Surviving Heiress of Maria Estella Longoria, Lucia Longoria and Miguel Longoria
Thomas Olivo Vargas and Maria Ignicia Rodriguez Vargas, Individually and as Natural Parents and Sole Surviving Heiress of Arturo Vargas
Oscar Castano

William Sames III as Administrator of the Estate of Jesus Verduzco, and Francisca De Cedillo Vda Verduzco, Individually and as Next Friend of Jesus Verduzco, Jr., Hector Guadalupe Verduzco, Marta Alicia Verduzco and Virginia Verduzco, Minors, and Michaela Guevaria Vidua De Verduzco

(2) Defendant-Appellant: Lubbock Manufacturing Co.

(3) Cross-Defendant Appellee: Surtigas, S.A.

The jury found, or failed to find, as the case may be, as follows:

(1) The jury failed to find that driver Verduzco was negligent in any respect.

(2) The jury found that Verduzco was in the employment of Surtigas at the time and on the occasion in question.

(3a) The Lubbock tank-trailer in question was defectively designed in that the center of gravity of the tank was too high; and

(3b) That such defect was a producing cause of the occasion in question.

(4a) The Lubbock tank-trailer in question was negligently designed in that the center of gravity of the tank was too high; and

(4b) That such negligence was a proximate cause of the occurrence in question.

(5) Lubbock actively designed and manufactured the tank with the center of gravity...

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