Roosth & Genecov Production Co. v. White

• Decision Date: 19 February 1953
• Docket Number: No. 6638,6638
• Citation: 257 S.W.2d 140
• Parties: ROOSTH & GENECOV PRODUCTION CO. v. WHITE et al.
• Court: Texas Court of Appeals

Page 140

257 S.W.2d 140

ROOSTH & GENECOV PRODUCTION CO. v. WHITE et al.

No. 6638.

Court of Civil Appeals of Texas, Texarkana.

Feb. 19, 1953.

Rehearing Denied April 9, 1953.

Gladney & Stephen, Henderson, J. Byron Saunders, Tyler, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.

Waldrop & Shaw, Chas. W. Shaw, Henderson, Leachman, Matthews & Gardere, Henry D. Akin, Dallas, Gordon R. Wellborn, Rex Houston, T. A. Bath, Dean W. Turner, Paul S. Colley, 3rd, Henderson, for appellees.

WILLIAMS, Justice.

In this suit for personal injuries against Roosth & Genecov Production Company and A. M. Sale, in which American Automobile Insurance Company intervened, Lee White, plaintiff below, was awarded judgment for damages of $30,000. Jury findings exonerated Sale from the only alleged act of negligence submitted or requested. Intervenor, the carrier of Workmen's Compensation Insurance on the employees of Carter and Jones, a partnership, was awarded a recovery of $12,661 out of above sum on its asserted and uncontested right of subrogation. The partnership who was protected by Workmen's Compensation Insurance is not a party to this action; all liability under this insurance contract having been discharged by intervenor. Roosth & Genecov Production Company, the sole appellant, will be referred to as appellant, and Carter and Jones as the partnership.

Appellant, the owner of an oil well derrick then situated on a leasehold in Smith County, entered into a written contract with defendant A. M. Sale under which the latter dismantled this derrick and re-erected it at a location designated by appellant on the Curbo lease in Rusk County. The same foundation blocks that had been used for the derrick on the Smith County lease, on instructions of appellant, were pulled up and re-used for the derrick on the Curbo lease. Appellant furnished the trucks to haul the blocks and the dismantled derrick to the new location. In dismantling and re-erecting the derrick, Sales acted as an independent contractor, so found by the jury, which finding is not attacked.

Under a written contract with appellant, the partnership then proceeded to drill to the Woodbine Sand. Plaintiff, a member of the drilling crew and an employee of the partnership, while engaged in the discharge of his duties under his employment was caught in the fall of this derrick which caused him serious bodily injuries. On May 31, 1948, the seventh day of drilling operations, and when down around 3,500 feet as the crew was pulling pipe out of the hole the clutch which clasped the string of pipe 'jumped out and the string of pipe slipped' and a fellow crewman applied the brakes with which derricks are usually equipped and caught the pipe to keep it from slipping back into the hole. Plaintiff heard a pop-'must have heard the clutch'; 'some one hollow and as I ran saw the derrick careening and fall.'

The stockholders in appellant company owned this Curbo leasehold. Under the admissions of A. S. Genecov, its president, the stockholders and appellant had entered into an oral contract under the terms of which appellant was given the 'exclusive control, supervision and maintenance' of the premises with the 'right and duty to have oil wells drilled thereon' and at the time of the injury, appellant was the 'lawful occupant of the premises.' Further, for the purpose of drilling the well in question appellant 'was to furnish derrick, water, gas, pipes and other materials commonly furnished by the owner or occupant of premises to a drilling contractor'; and 'had the right and it was its duty to employ independent contractors to drill wells and construct derricks on said premises.'

Under the contract with the partnership appellant agreed to furnish the derrick, casing, pipe, slush pits, fuel, water and to pay for all cement and cement services in drilling the well. The partnership was to furnish the derrick floor, a complete rotary rig, all necessary tools, labor and repairs to drill to 3,800 feet or a sufficient depth to test the Woodbine sands and to complete the well. The partnership agreed to set surface casing and run the oil string, if same became necessary, and to test at intervals the straightness of the hole. The partnership agreed to furnish rig and labor for making electrical surveys when well reached the total depth but appellant was to pay the charges for an electrical survey. The partnership was to receive from appellant upon completion and acceptance by the latter the sum of $1.25 per lineal foot so drilled.

The first twenty-seven points attack the submission of the special issues next herein detailed and the sufficiency of the evidence to support the jury's affirmative finding to each. Above points attack (1) the application of the 'business invitee theory' to the facts and circumstances herein summarized and upon which judgment for plaintiff rests; and (2) the failure of the court to limit the inquiry in each issue to the alleged inherent defect or defects as alleged, in support of which plaintiff adduced his evidence.

Special Issue No. 1 inquired if appellant, its agents, servants and employees 'knew, or by the use of ordinary care, should have known the condition of the completed derrick as it stood on the Curbo lease at the time it was furnished for use in plaintiff's employment'; No. 2,-if 'such completed derrick, as it stood, was defective at the time it was furnished' by appellant 'for use in plaintiff's employment'; No. 3-if 'such completed derrick, as it stood, was defective to the extent that it was inherently dangerous at the time it was furnished for use in plaintiff's employment by' appellant; No. 6-if appellant, 'its agents, servants and employees, failed to warn plaintiff of the defective condition, if any, of the completed derrick as it stood on the Curbo lease'; No. 9-if 'by the exercise of ordinary care' appellant, 'its agents, servants or employees should have discovered such defective condition, if any, of the completed derrick as it was furnished for use'; No. 10-if prior to the time the derrick struck and injured plaintiff, appellant, 'its agents, servants and employees failed to properly inspect the derrick'; and No. 13-if appellant 'had the right of control over the premises where the work in question was being performed' by plaintiff.

Special Issues Nos. 4 and 5 submitted in connection with Special Issue No. 2, inquired if the furnishing 'of such defective derrick for use, if you have so found, was negligence; and if so, was it a proximate cause of the derrick striking and injuring' plaintiff. If the jury answered Special Issue No. 6 in the affirmative, they were required to answer Nos. 7 and 8 and found that the alleged failure to warn was negligence and a proximate cause of the injuries. If Special Issue No. 10 be answered in the affirmative, the jury was required to answer Nos. 11 and 12 and found that the alleged failure to inspect the derrick was negligence and a proximate cause of the injury.

The acts of negligence as alleged by plaintiff and the evidence introduced in support of same may be grouped as follows: (1) The foundation block under the southeast corner of the derrick was of irregular size and thickness; (2) the two right foundation blocks were on a deep sand fill that had not settled; (3) the derrick was old and rusty and had been exposed to the elements for many years; and (4) the bolts in the derrick were old and rusty.

It is without dispute that neither plaintiff, appellant, Sale nor the partnership had any actual knowledge of any alleged defect, visible or inherent, in the derrick or in the manner of its re-erection. It is further without controversy that both Sale and the partnership were independent contractors and that each was experienced and reliable in his respective field of operation. Plaintiff was certainly a business invitee upon the premises at the time.

If it be assumed that the evidence is sufficient to support one or more or all of above alleged acts of negligence, appellant takes the position as reannounced in Southern Oil Co. v. Church, 32 Tex.Civ.App. 325, 74 S.W. 797, 798, writ denied, and applied to a record substantially as here, that 'There was no contract duty resting upon the Southern Oil Company (appellant here) to the appellee (plaintiff here). The law would imply the duty resting upon the appellant not to intentionally or willfully injure the appellee, or knowingly furnish him agencies to be used in his employment that are inherently dangerous.' 'The duty looking to the care of the plaintiff, under the facts stated, rested upon Hammil Bros. (partnership here), and for negligence which consisted merely in acts of omission or failure to perform ordinary care looking towards his safety the plaintiff should be limited to a recovery from them.' Many decisions are cited in support of above doctrine. This holding cited in later Texas decisions with approval has never been expressly repudiated by our Texas courts unless the holding by our Supreme Court in Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431, 20 A.L.R.2d 853, relied upon by plaintiff is appliable to this record and by implication repudiates Southern Oil Co. v. Church, supra. The court in Allbritton v. Sunray Oil Co., D.C., 88 F.Supp. 55, 57, cited by appellant, recognized the rule restated in the Church case and attempted to draw a distinction between practically similar records in the two cases in an affirmance of liability.

Being an intermediate court, the holding in Smith v. Henger, supra, is recognized as applicable here wherein it is stated, 226 S.W.2d at page 431, 'A general contractor on a construction job, who is in control of the premises, is burdened with the duty to use due care to provide a safe place for workmen on the premises, including the employees of other contractors', citing numerous authorities.

Special Issue No. 13, hereinabove...