Nowsco Services Div. of Big Three Industries, Inc. v. Lassman

• Decision Date: 12 July 1984
• Docket Number: No. C14-82-728CV,C14-82-728CV
• Citation: 686 S.W.2d 197
• Parties: NOWSCO SERVICES DIVISION OF BIG THREE INDUSTRIES, INC., Appellant, v. Chris D. LASSMAN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 197

686 S.W.2d 197

NOWSCO SERVICES DIVISION OF BIG THREE INDUSTRIES, INC., Appellant, v. Chris D. LASSMAN, Appellee.

No. C14-82-728CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 12, 1984.

Rehearing Denied Sept. 13, 1984.

Second Rehearing Denied Jan. 24, 1985.

Theodore Goller, Fulbright & Jaworski, Henry P. Giessel, Talbert, Giessel, Stone, Barker & Lyman, Mayo J. Thompson, Houston, for appellant.

William R. Edwards, Edwards & Perry, Corpus Christi, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

SEARS, Justice.

Chris Lassman, Appellee, brought a maritime negligence action against Jaray, Inc., Nitrogen Oilwell Service Company, Fairbanks Well Service (Fairbanks), Mitchell Energy Production Corporation (Mitchell), Mitchell Energy Corporation, Intercoastal Operating Company, Intercoastal Industries, Inc. and Nowsco Services Division of Big Three Industries, Inc., Appellant, for personal injuries sustained by him while working as a Jones Act seaman on an oil well drilling barge in September, 1978. Fairbanks cross-claimed against Mitchell and Appellant for indemnity and contribution. Mitchell cross-claimed against Fairbanks and Appellant. Appellant cross-claimed against Fairbanks but was denied leave to file a late cross-claim against Mitchell. The trial court directed a verdict in favor of Fairbanks and Mitchell.

TEX.REV.CIV.STAT.ANN. art. 2212a (Vernon Supp.1984), gives a defendant the opportunity to request issues concerning the negligence of co-defendants if such issues are supported by pleadings. In this case, however, Appellant failed to timely file any pleadings against Mitchell and an issue inquiring of Mitchell's negligence, if any, was not submitted. Consequently, Appellant was not awarded contribution or indemnity from Mitchell and is therefore liable for the entire $745,759.46 awarded Appellee by the jury. Appellant's Motion for New Trial and/or Remittitur was overruled by the trial court. On appeal, Appellant does not contest its liability to Appellee. Rather, Appellant argues the trial court erred in granting Mitchell's Motion for Directed Verdict, claims a statutory right to contribution from Mitchell, although Mitchell was dismissed from the suit and Appellant had no pleadings against Mitchell, and contests the failure of the trial court to grant a new trial and/or the court's refusal to order a remittitur. We affirm.

Appellee was injured while working as a derrickman for Fairbanks, the drilling contractor in workover operations on Mitchell's oil lease. Mitchell contracted with Appellant to send a coil tubing unit to the offshore rig. The unit was to run a continuous length of one-inch diameter steel tubing into the hole and inject nitrogen through the tube in order to flush debris out of the well. The accident occurred as Appellant attempted to move the injector head from a barge to the well platform with a cherrypicker. The cherrypicker had a hydraulic boom which both rotated and telescoped. Appellant used a chain on the cherrypicker which was designed to stabilize the injector head but not to lift it. The chain broke in the lifting attempt and the injector head fell, coming to rest partially on top of the pump shed on the platform. The crane operator then attempted to swing the boom laterally in order to free the head from the shed. Since the boom was telescoped to its fullest and could not lift the head straight up, Appellant attempted to swing the boom to move the head. Appellee saw a piece of coil tubing on the truck, which he thought might interfere with the lateral movement of the crane's boom, and was attempting to move the tubing when the injector head swung back and struck the rear of the truck. The truck was overturned and Appellee became entangled in the hydraulic hoses and was pulled into the bay. A roughneck dove in the bay, disentangled Appellee from the hydraulic lines and pulled him to safety. Appellee sustained a compression fracture of the fourth and fifth vertebrae in the thoracic area of the back and was hospitalized for two or three weeks.

In its first point of error, Appellant contends that the trial court erred in granting Mitchell a Directed Verdict, alleging that sufficient evidence was introduced from which the jury could have found Mitchell liable to Appellee on theories of negligence or unseaworthiness. It argues that it has standing to appeal from the Directed Verdict in favor of Mitchell because it is an aggrieved party which lost its statutory right to contribution from a joint tortfeasor when the Directed Verdict was granted. We disagree. Appellant has no standing to appeal from the judgment for Mitchell because it had no trial pleadings against Mitchell.

TEX.REV.CIV.STAT.ANN. art. 2212a, § 2(g) (Vernon Supp.1984), provides:

All claims for contribution between named defendants in the primary suit shall be determined in the primary suit, except that a named defendant may proceed against a person not a party to the primary suit who has not effected a settlement with the claimant.

This section changed prior law by making a cross-claim for contribution mandatory when the cross-claimant has been made a party to the suit by the plaintiff. See Helicoptoros Nacionales de Colombia, S.A. v. Hall, 616 S.W.2d 247, 252 (Tex.Civ.App.--Houston [1st Dist.] 1981), rev'd on other grounds, 638 S.W.2d 870 (Tex.1982), rev'd, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); DORSANEO, TEXAS LITIGATION GUIDE § 291.04[a]. Contribution from joint tortfeasors in negligence actions is a statutory remedy in Texas and, like any other claim, must be supported by sufficient pleadings. As noted in Beaumont Coca Cola Bottling Co. v. Cain, 628 S.W.2d 99, 101 (Tex.Civ.App.--Beaumont 1981, writ ref'd n.r.e.) (emphasis in original), "all rights of contribution must be pleaded and determined in the primary suit or be barred unless such right comes within the language found in the last phrase of the subsection". Since Appellant had no pleadings against Mitchell, we overrule point of error one.

In its second point of error, Appellant claims that the trial court erred in failing to grant a new trial or to order a remittitur because the verdict and judgment is manifestly excessive. Appellant compares amounts awarded to plaintiffs in other cases and concludes that a remittitur must be ordered because Appellee's injury is less severe. We disagree with Appellant's conclusions as to the severity of Appellee's injuries and as to what the applicable standard of review is.

The basic standard of review was articulated in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). It stated:

'All the Court of Civil Appeals can do, and all that is required of it to do ... is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess ... [Having] decided upon an amount that would be reasonable compensation ... it should authorize a remittitur of the excess ... in accordance with its sound judgment.'

Id. 159 Tex. at 606, 324 S.W.2d at 840 (cite omitted). Later cases have amplified this holding. In McMillin v. L.D.L.R., 645 S.W.2d 836, 841 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.), the court stated that in applying this standard, only evidence favorable to the jury's award is to be considered by the court. See also Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). In Amoco Production Co. v. Thompson, 657 S.W.2d 824, 831 (Tex.App.--Corpus Christi) (opinion on Motion for Rehearing) (emphasis added), rev'd, Ideal Lease Service, Inc. v. Amoco Production Co., 662 S.W.2d 951 (Tex.1983), ¹ the court also noted that:

The measure of damages in a personal injury case is not subject to precise mathematical calculation. Rosenblum v. Bloom, 492 S.W.2d 321, 325 (Tex.Civ.App.--Waco 1973, writ ref'd n.r.e.); Houser v. Sunshine Laundries & Dry Cleaning Corp., 438 S.W.2d 117, 120 (Tex.Civ.App.--San Antonio 1969, writ ref'd n.r.e.). Matters of past and future pain and suffering, disfigurement and physical impairment are necessarily speculative, and it is particularly within the province of the jury to resolve these matters and determine the amounts attributable thereto. Rosenblum v. Bloom, supra. Each case must be measured by its own facts, and considerable latitude must necessarily be vested in the jury. Id.; Houser v. Sunshine Laundries & Dry Cleaning Corp., supra.

In Allen v. Whisenhunt, 603 S.W.2d 242 (Tex.Civ.App.--Houston [14th Dist.] 1980 writ dism'd), this court held that absent some evidence of jury bias or prejudice, a court "must give every intendment to the evidence supporting the verdict" and stated that the amount the trial or appellate court would have awarded is irrelevant. Id. at 245. Finally, in Texas Farm Products Co. v. Stock, 657 S.W.2d 494 (Tex.App.--Tyler 1983, writ ref'd n.r.e.) (opinion on Motion for Rehearing), the court stated that if passion, prejudice or other improper motivation which controlled the jury's award of damages is affirmatively shown, the case must be reversed and remanded. Absent such a showing, a remittitur is proper. The court explained that the mere excessiveness of the verdict is insufficient to establish that the jury was motivated by passion and prejudice unless the amount awarded is shocking to the judicial conscience. In that case, reversal and a new trial is proper. Id. at 505.

We must therefore review the evidence concerning Appellee's injuries. As stated, Appellee was injured while working as a derrickman on an offshore oil rig. He became entangled in the hydraulic hoses of the crane operated by Appellant and was pulled underwater in the bay. Appellee testified that he held his breath for as long as he could, involuntarily inhaled water and then passed out. A roughneck saved Appellee's life by diving into the bay, freeing him and pulling him to safety. Appell...