Munoz v. Gulf Oil Co., C14-86-378-CV
| Decision Date | 14 May 1987 |
| Docket Number | No. C14-86-378-CV,C14-86-378-CV |
| Citation | 732 S.W.2d 62 |
| Parties | Prod.Liab.Rep. (CCH) P 11,443 Guadalupe MUNOZ, et al., Appellants, v. GULF OIL COMPANY, et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Warren Weir, San Antonio, Charles Herring, Jr., Houston, for appellants.
W. James Kronzer, Michael Hendryx, Eugene C. Marshall, Houston, Frederick J. Bradford, Galveston, Michael S. Hays, Houston, Otto D. Hewitt, III, Galveston, for appellees.
Before SEARS, DRAUGHN and ELLIS, JJ.
This is an appeal from a summary judgment granted in favor of appellees Gulf Oil Company, Warren Petroleum Company, Amerada Hess Corporation, Phillips Petroleum Corporation, Amoco Oil Company, and Amoco Production Company. We affirm.
Appellants, Guadalupe Munoz and his employer's compensation carrier, American General Insurance Company, sued twelve defendants, including the appellees, to recover for personal injuries sustained in an explosion. The trial court granted pleas of privilege to four defendants and this court affirmed. Munoz v. Farmland Industries, Inc., 603 S.W.2d 225 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ dism'd). Munoz proceeded with his suit against the remaining defendants, alleging actions in negligence and products liability, breach of warranty, and violations of the Deceptive Trade Practices Act. In July 1982, the trial court granted summary judgment for all defendants. This court, in an unpublished opinion, affirmed the judgment of the trial court. On Munoz' petition for writ of error, the Supreme Court of Texas affirmed the grant of summary judgment as to one defendant, Enterprise Products, but reversed the grant of summary judgment as to the other defendants. Munoz v. Gulf Oil Co., 693 S.W.2d 372 (Tex.1985). The court held the affidavit in support of summary judgment offered by Enterprise conclusively proved its defense to all theories of recovery alleged by Munoz. However, because the other defendants, the appellees herein, failed to file any affidavits or other evidence to support their motions for summary judgment, judgment as to them was reversed.
Upon remand to the trial court, the appellees filed new motions for summary judgment supported by affidavits and other summary judgment evidence. In March 1986, the trial court granted summary judgment in favor of the appellees. It is from this judgment that appellants bring the present appeal.
Each of the appellees were part of one of two chains of distribution of the propane gas purchased by Munoz' employer, Acuff Co-op. Amerada Hess sold propane gas to Enterprise and the Amoco Companies sold to Warren, an unincorporated division of Gulf Oil. Both Enterprise and Warren then each sold the propane gas to three other oil companies before the propane reached Acuff. The other oil companies in the two chains were former defendants and are not part of this appeal. Propane is normally odorized by mixing it with ethyl mercaptan as a warning that the otherwise odorless gas is present. Phillips Petroleum manufactured the ethyl mercaptan used to malodorize propane gas in the Amoco Companies' chain of distribution.
Guadalupe Munoz' injuries occurred while he was working in the bottom of a hole seventeen feet deep. Munoz and a fellow employee had been working ten hours a day for three weeks to dig the hole inside a pellet house, a building too small to accommodate heavy equipment. When Munoz paused to light a cigarette, an explosion and fire erupted. Flames reached to the top of the pellet house and Munoz suffered severe burns. After the fire and accident, the fire marshall determined that a large concentration of propane gas was present in the hole, but there was no odor of gas in or around it. Acuff Co-op later discovered that a leak had developed in its underground pipe system carrying the propane gas. The heavier-than-air gas had seeped through the ground and had collected in the pit. Appellants contend that the malodorant in the gas had been filtered out by its passage through alkaline soil.
The summary judgment evidence presently before the court encompasses more than that reviewed by the Supreme Court in the previous appeal. Plaintiffs as well as defendants were educated by the first experience. When the second round of motions for summary judgment were filed, Munoz responded with the sworn affidavit of his expert, Ray Staebel. Munoz also filed with the trial court the statement of facts from the plea of privilege hearing. The threshold question for our determination is whether the statement of facts from that proceeding can be considered in this appeal. In Munoz v. Gulf Oil Co., the Supreme Court said, "If there is no file mark on a statement of facts or any other indication it was considered by the trial court at the time the motion for summary judgment was sustained, it may not be considered on appeal." 693 S.W.2d at 373. The statement of facts now bears the file mark of the trial court, and the order granting summary judgment recites that the entire record on file was considered. Nevertheless, appellees Gulf and Warren argue that since they were not parties to the plea of privilege hearing, they had no opportunity to cross-examine the witnesses and, therefore, the statement of facts is hearsay as to them. We do not accept appellees' premise. The testimony at the hearing was given under oath just as was that in each of the affidavits upon which appellees rely. Each deposition, excerpts of which were read into the record at the hearing, is also on file in its entirety with proof that each of the deponents was duly sworn. We find that the statement of facts from the plea of privilege hearing is properly before us and it will be considered as a part of the summary judgment proof.
In each of eight points of error, the appellants contend that the trial court erred in granting summary judgment because the defendants failed to establish that there were no genuine issues as to any material fact. Despite the manner in which appellants have framed their points of error, the issue before the appellate court is not whether the summary judgment proof raises fact questions essential to plaintiffs' claims; the principal issue before this court is whether the defendants met their burden of showing that as a matter of law the plaintiffs have no cause of action against them. Summary judgment granted to a defendant will be affirmed if the defendant-movant has conclusively proved all the essential elements of his defense as a matter of law. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex.1985). The burden is on the movant to negate the existence of at least one material element of the plaintiff's case. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).
In their Fifth Amended Original Petition, the appellants allege Phillips Petroleum negligently manufactured, or alternatively, defectively manufactured, ethyl mercaptan. They further allege that the other defendant oil companies: (1) negligently manufactured and distributed propane; (2) manufactured and distributed defective propane; and (3) failed to warn adequately of the dangers involved and/or failed to instruct intended users concerning the proper handling and care of propane. Claims of breach of warranties of merchantibility and fitness and violations of the Deceptive Trade Practices Act are alleged against all defendants.
To establish a breach of warranty claim, a plaintiff must prove the existence of a warranty and that the breach thereof caused the plaintiff's injuries. The summary judgment proof shows that the appellees were contractually obligated to malodorize the propane they sold. The specific technical requirements created express warranties. Express warranties displace inconsistent implied warranties. Tex.Bus.Com.Code Ann. § 2.317(3). Affidavits presented by each of the appellees conclusively prove that ethyl mercaptan is the best malodorant available and that the propane had been injected with a...
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