Petco Corp. v. Plummer, 16569

• Decision Date: 04 June 1965
• Docket Number: No. 16569,16569
• Citation: 392 S.W.2d 163
• Parties: PETCO CORPORATION, Appellant, v. W. F. PLUMMER, Appellee.
• Court: Texas Court of Appeals

Page 163

392 S.W.2d 163

PETCO CORPORATION, Appellant, v. W. F. PLUMMER, Appellee.

No. 16569.

Court of Civil Appeals of Texas, Dallas.

June 4, 1965.

Rehearing Denied July 2, 1965.

Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellant.

Baker, Jordan, Shaw & Foreman, Russell M. Baker, Dallas, for appellee.

BATEMAN, Justice.

Appellee W. F. Plummer sued for damages for bodily injuries resulting from a gas explosion, originally naming as defendants Lone Star Gas Company (herein called Lone Star), Petco Corporation (herein called Petco), L. & L. Electric Company and Gene's Plumbing Company. Petco had built a house for resale and had contracted to sell it to one Jones and wife, who were in the process of moving into the house at the time of the explosion, although a deed conveying the property to them had not yet been executed. A gas cooking stove had been installed in the kitchen, but at the request of the purchasers it had been replaced with an electric stove, and in making this change the gas pipes in the kitchen were left uncapped. L. & L. Electric Company had been the electric contractor and Gene's Plumbing Company the plumbing contractor. Lone Star Gas Company, a public utility, furnished gas to Petco during the construction of the house for the convenience of Petco's and other workmen. There was a stopcock outside the house at the foundation, where the gas in the house could be turned on and off.

On February 23, 1962, one of Petco's employee had turned the gas on at the foundation, had gone into the house, smelled gas and saw that the gas lines leading into the kitchen were open and uncapped. He informed a painter on the job and another of Petco's employees of this situation, and the other employee turned the gas off at the foundation. Neither of these Petco employees passed this information on to any of Petco's supervisory employees. Three days later, on February 26, 1962, Mrs. Jones made the appropriate meter deposit with Lone Star and Lone Star's employee came to the house to change the gas service into the name of Mr. and Mrs. Jones. Discovering that the gas had been turned off at the foundation stopcock, Lone Star's employee turned it on, ignited the hot water heater and attempted unsuccessfully to light the central heating system. He did not discover the gas leak in the kitchen. On the same day Plummer, who was an employee of the heating contractor, entered the house to turn on the central heating system. As soon as he did so the explosion occurred, resulting in serious bodily injuries to Plummer.

After suing the four defendants, Plummer settled with all of them except Petco and filed an amended petition naming only Petco as defendant. Petco then brought Lone Star Gas Company back into the case by cross-action for indemnity or, in the alternative, contribution.

The jury found that Petco's employees were negligent (1) in failing to inspect the gas lines in the kitchen to ascertain whether they were capped, (2) in failing to cap such lines or have them capped, and (3) in failing to notify Petco's foreman or supervisors that the lines were open and uncapped; each of which negligent omissions was found to be a proximate cause of the explosion. The jury also found that Lone Star was negligent (1) in turning the gas on at the foundation cutoff and leaving it on, (2) in failing to make a five-minute meter test, and (3) in failing to observe the flow of gas though the meter after turning it on; and that each such negligent act was a proximate cause of the explosion.

Lone Star had paid Plummer $75,000 in compromise settlement, taking from him a covenant not to sue and agreement to indemnify it against further liability. Plummer had also settled with L. & L. Electric Company for $1,250 and with Gene's Plumbing Company for $1,750, giving to each of them also a covenant not to sue. The jury found that Plummer's damages were $150,000, to which the court added $15,959.92, which had been stipulated as medical expenses, making a total of $165,959.92. The court then credited thereon the $3,000 received by Plummer from L. & L. Electric Company and Gene's Plumbing Company, reducing the total damages to $162,959.92, then held that Petco was entitled to contribution from Lone Star and rendered judgment for one-half of the figure last mentioned, or $81,479.96. Petco appeals on three points of error.

By its first point of error Petco says the court erred in rendering any judgment against it, its theory being that it was entitled to indemnity against Lone Star as a matter of law under the record and jury findings and, since Lone Star was in turn entitled to indemnity from Plummer under the terms of their settlement agreement, the only proper judgment was one that Plummer take nothing against Petco. This would avoid useless circuity of action among these parties and arrive at the same result. Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, wr. ref. n.r.e.

This principle is well recognized in our jurisprudence, but in the present situation is applicable only if Petco can demonstrate that Lone Star breached a duty which it owed to Petco and that Petco did not breach any duty which it owed to Lone Star. Petco takes the position here that since it owned the house and was a customer of Lone Star, the latter owed to it a duty which it breached by committing the three acts of negligence found by the jury.

We fail to see in this record a breach by Lone Star of any duty owing by it to Petco except the general duty which it owed to Plummer and all others who were lawfully on the premises at the time of the explosion. Petco contends that Lone Star owed a special duty to it because it was a customer. It is true that Lone Star furnished gas to Petco at this house during its construction, but on the day of the explosion, according to the undisputed evidence, the act of Lone Star's employee in turning the gas on at the foundation stopcock and leaving it on was in response to the request of Mrs. Jones, one of the purchasers of the property, that the gas service be transferred from Petco's name to theirs. In doing this the employee read the gas meter so that gas furnished prior to that date could be charged to Petco and gas furnished thereafter charged to Jones. We do not think that under these circumstances Lone Star owed any special duty to Petco which it did not owe to all persons lawfully on the premises.

So much has been written on the rights and duties of tortfeasors among themselves that we pretermit a full discussion here of the development of the law thereon. See Hodges, 'Contribution and Indemnity Among Tortfeasors,' 26 Tex.L.Rev. 150; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005; and Palestine Contractors, Inc. v. Perkins, Tex.Sup. 1964, 386 S.W.2d 764. Suffice it to say here that under the modern rule indemnity is not allowed in such cases unless it be found that the tortfeasors are not in pari delicto. The rule is thus stated in 30 Tex.Jur.2d, Indemnity, p. 453, § 9:

'A common-law right to indemnity, as distinguished from contribution, exists where two or more persons are chargeable with negligence and are liable to the injured party, but where, as between the wrongdoers, a duty is owing from one to the other or one is guilty of a greater degree of culpability. In this situation, the person owing the duty or guilty of the greater culpability may be required to indemnify the other negligent person in full for whatever damages he has been compelled to pay.'

It seems clear to us that Petco is not entitled to indemnity from Lone Star under the common law, but that their respective rights are governed by Vernon's Ann.Civ.St., Art. 2212, providing for contribution, which rule the trial court applied. As we see it, each of these defendants owed a duty to exercise ordinary care for the safety of Plummer and all others lawfully on the premises. Both were found to have breached that duty, and each was guilty of the same quality of negligence toward Plummer. 'Thus they stand in pari delicto with each other and must, under the statute, share equally the burdens arising...