Marathon Oil Co. v. Sterner, A14-87-00259-CV

• Decision Date: 14 January 1988
• Docket Number: No. A14-87-00259-CV,A14-87-00259-CV
• Citation: 745 S.W.2d 420
• Parties: 109 Lab.Cas. P 55,912 MARATHON OIL COMPANY, Appellant, v. James E. STERNER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 420

745 S.W.2d 420

109 Lab.Cas. P 55,912

MARATHON OIL COMPANY, Appellant, v. James E. STERNER, Appellee.

No. A14-87-00259-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 14, 1988.

Wade B. Williams, Carla Bishop, Galveston, for appellant.

Gordon E. Davenport, Alvin, for appellee.

Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.

OPINION

ROBERTSON, Justice.

This appeal is from a judgment entered on jury findings in an action for tortious interference with contract. Although appellant (Marathon) asserts seven points of error, the dispositive issue is whether there is any evidence that Marathon's interference with appellee's (Sterner's) contract of employment was not justified or legally excused. Holding there is no evidence that Marathon interfered without legal excuse or justification, we reverse.

Sterner was and had been for some time a boilermaker and member of a local union in Texas City. In 1975, while in the employ of Morris Construction Company, he was injured on Marathon's premises as a result of gas inhalation. He filed suit against Marathon to recover for injuries suffered. That lawsuit was tried in 1980, some nine months prior to the events giving rise to the present lawsuit. Marathon's defense to the 1980 lawsuit, based upon medical evidence, was that Sterner was not injured as a result of gas inhalation. However, the jury found for Sterner and awarded $25,000 in damages.

In November 1980 (about the same time the first lawsuit was concluded), Marathon entered into a contract with Ford, Bacon & Davis, as contractor, to build or rebuild a hot oil treating plant and a hydro treating plant at its refinery. The contract was on a cost-plus basis but was "somewhere in the neighborhood of six or seven million dollars." The contractor had been working for almost a year when the union local sent Sterner to the job.

On the first day, Sterner worked all day; on the second day shortly after lunch, he got "dizzy," was "upchucking and went to the house." As he was leaving the plant he saw one of Marathon's safety personnel who asked him what he was doing; he replied he was working. The next day when Sterner reported for work, he was advised by his pusher that he was terminated. The "pink slip," or payroll termination notice he received from the contractor, gave as the reason for termination "per Marathon's directive." Sterner then filed suit against Marathon, claiming Marathon interfered with his employment contract. In his original petition and first and second amended petitions he alleged he "was discharged by his employer as a result of the willful, intentional actions of Marathon Oil Company employees, agents and/or servants acting in the course and scope of their employment."

At the trial for tortious interference with contract, Marathon denied it had instructed Ford, Bacon & Davis to terminate Sterner. Rather, Marathon maintained simply that it did not want Sterner working on its premises but it was of no concern to Marathon if Ford, Bacon & Davis could use him elsewhere. Marathon based its position upon Sterner's testimony in the 1980 trial. It concluded from that testimony that Sterner was physically unable to do the work required under Marathon's contract with Ford, Bacon & Davis, and that to permit a person to work with the type of problems Sterner had "was taking an unnecessary risk," not only for Marathon but for the employee himself, the subcontractor, the other employees and the public in general.

Since appellee has agreed that appellant's statement of the case "is essentially correct" we quote the following from appellant's brief concerning appellee's physical condition:

During the 1980 trial, Sterner related his past medical history, along with his current problems from the gas exposure. His testimony at the first trial against Marathon and at the trial of this case included the following medical problems, and resulting physical incapacity. In 1967, high pole rigging, which entails extensive amounts of climbing, was taken off Sterner's union card after he got shot. This was done because he has paralysis in his left arm which restricts his climbing ability. A left knee injury caused him to miss seven and a half months work, and resulted in a fifty percent disability to his knee. His right knee was also injured in high school. In the past, Sterner missed three months work when he fell off a scaffold and injured his spine. In addition to a neck/disc injury which caused him to miss two months work, he also sustained a broken hand and missed work. Sterner also has a history of hypertension.

In addition to the above medical problems, Sterner testified in his 1980 trial against Marathon Oil Company that the gas inhalation had further restricted his work ability. He could not even bowl or "run as much as two blocks" because of chest pains. He had difficulty breathing when he got nervous or upset and was required to climb. He was unable to perform structural steel work because of the climbing required. Breathing was such a problem that he had to take "one step at a time" when climbing. Coupled with the difficulty climbing, he also had problems with dizziness and light-headedness. He continued to have these problems five years after the 1975 accident. Sterner was released from other jobs because of his inability to work after the 1975 accident. In fact, he had received termination slips which actually had "Unable to Work" noted on them. Similarly, he had "missed out" on other jobs because of his inability to climb. At the union hall, it was a known fact that he could not climb, so that the union had "passed over" him for specific jobs that required climbing. Due to his past and present medical conditions, Sterner was basically unable to breathe, climb, run, or even bowl for recreation.

In its first point of error appellant contends the court erred in failing to grant its motion for directed verdict and in overruling its motion for judgment n.o.v. because there is no cause of action for tortious interference with contract when employment is terminable at will. While a conflict had existed among Texas intermediate appellate courts on this issue, we believe the supreme court settled the issue when it held in Clements v. Withers, 437 S.W.2d 818 (Tex.1969), that the unenforceability of a contract is no defense to an action for tortious interference with its performance. Although the specific question in Clements concerned the enforceability of a contract that did not comply with the statute of frauds, there is no reason why the announced rule would not apply to a contract terminable at will. Accordingly, we so hold. Appellant's first point is overruled.

In its second point of error appellant contends there is no evidence or, alternatively, insufficient evidence, to support the jury findings that Marathon's interference with Sterner's employment contract was not justified or legally excused. Appellant preserved this contention by motion to disregard jury findings, motion for judgment notwithstanding the verdict, and motion for new trial.

It is beyond dispute, and appellee so acknowledges, that one is privileged to interfere with another's contract if it is done in a bona fide exercise of his own rights or if he has an equal or superior right in the subject matter to that of the other party. Sakowitz v. Steck, 669 S.W.2d 105 (Tex.1984); Black Lake Pipe Line Co. v. Union...