Shell Chemical Co. v. Lamb

• Citation: 493 S.W.2d 742
• Decision Date: 02 May 1973
• Docket Number: No. B--3311,B--3311
• Parties: SHELL CHEMICAL COMPANY et al., Petitioners, v. Adele L. LAMB et al., Respondents.
• Court: Texas Supreme Court

Page 742

493 S.W.2d 742

SHELL CHEMICAL COMPANY et al., Petitioners, v. Adele L. LAMB et al., Respondents.

No. B--3311.

Supreme Court of Texas.

May 2, 1973.

Rehearing Denied May 30, 1973.

Baker & Botts, Robert J. Malinak, Vinson, Elkins, Searls & Smith, Gerald P. Coley, Fulbright, Crooker & Jaworski, Jerry V. Walker and Rufus Wallingford, Houston, for petitioners.

Garrett & Letbetter, Tom R. Letbetter, and George Payne, Mounger & Whittington, Rex Mounger, George D. Neal, Houston, for respondents.

McGEE, Justice.

Adele L. Lamb, individually and as next friend for Robin L. Lamb, and Mila Jean Lamb Thompson, joined by her husband, Kenneth D. Thompson, brought suit in the district court against Shell Chemical Company, Shell Oil Company, and H. K. Ferguson Company for the wrongful death of Edward N. Lamb. These plaintiffs, as the community survivors of Edward N. Lamb, also sought recovery for damages for personal injuries sustained by Edward N. Lamb. Shell Chemical Company, by way of a cross action, sought contractual indemnity against the H. K. Ferguson Company. The H. K. Ferguson Company brought the Fisk Electric Company into the suit and sought contractual indemnity against Fisk as a third party defendant.

In 1966 a Shell plant was being constructed on Shell's property near Deer Park in Harris County, Texas. The H. K. Ferguson Company, hereinafter called Ferguson, was the general contractor for this project. The Fisk Electric Company, hereinafter called Fisk, was an electrical subcontractor under Ferguson. The deceased, Edward N. Lamb, was an employee of Fisk.

On June 7, 1966 while working on the Shell premises under the supervision of Fisk, Edward N. Lamb fell from a ladder and suffered injuries from which he died ten (10) days later. Plaintiffs alleged that the deceased, while working as an electrician and in the course of installing electric wiring, conduit, pipes and supporting devices, received an electrical shock which caused him to lose his balance and fall from the ladder.

Plaintiffs alleged that various acts of negligence on the part of Shell and Ferguson proximately caused the occurrence made the basis of the suit.

The district court withdrew the case as it pertained to Ferguson from the jury and rendered judgment that plaintiffs take nothing from Ferguson. Based on the jury's verdict favorable to Shell, judgment was rendered that plaintiffs take nothing from Shell Chemical Company and Shell Oil Company. Judgment was also rendered that Shell take nothing against Ferguson and that Ferguson take nothing against Fisk.

The court of civil appeals reversed and remanded. 476 S.W.2d 885. We reverse the judgment of the court of civil appeals, and we affirm the judgment of the district court.

The court of civil appeals reversed the judgment of the trial court that plaintiffs take nothing against Shell, and remanded the cause holding that the trial court erred in allowing Fisk six peremptory jury strikes. Petitioners Shell and Fisk contend that the court of civil appeals erred in so holding. Rule 233, Texas Rules of Civil Procedure, provides that:

'Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court. . . .'

However, the mere fact that one is named as a party to a lawsuit does not in itself entitle him to six peremptory strikes. In order for each of two defendants to be entitled to the six peremptory strikes allowed by Rule 233, it must appear from the pleadings that the interests of those defendants are antagonistic on an issue with which the jury may be concerned. ¹ See Retail Credit Company et al. v. S. H. Hyman, 316 S.W.2d 769 (Tex.Civ.App.1958, writ ref'd); William J. O'Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App.1970, writ ref'd n.r.e.); M. L. Mayfield Petroleum Corporation v. Kelly, 450 S.W.2d 104 (Tex.Civ.App.1970, writ ref'd n.r.e.); Brown & Root, Inc. v. Gragg, 444 S.W.2d 656 (Tex.Civ.App.1969, writ ref'd n.r.e.).

The court of civil appeals recognized the above principle and cited the Retail Credit case as authority for its holding. We disagree with the court's conclusion that there was no showing that Ferguson and Fisk were antagonistic as to a matter with which the jury was to be concerned. In its pleadings setting forth the third party action against Fisk, Ferguson alleged that:

'Under the terms of the subcontract being performed at the time of the accident, Fisk promised to indemnify Ferguson against all claims resulting from injury, including death, sustained by any employee of Fisk arising from any cause or for any reason.'

Fisk's answer to that pleading contained a general denial.

It is well settled that a general denial puts the plaintiff (in this case, Ferguson, third party plaintiff) on proof of every fact essential to his case and issue is joined on all material facts asserted by plaintiff (in this case, Ferguson, third party plaintiff), except those which are required to be denied under oath. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943). An essential element of Ferguson's cause of action against Fisk was that Fisk was performing its subcontract with Ferguson at the time of Lamb's accident. Fisk's general denial joined issue on this material fact. This dispute was not submitted to the jury because it became moot when the trial court directed a verdict for Ferguson.

Shell's First Amended Original Answer reads in part as follows:

'Alternatively, if Mr. Lamb did not fail to exercise ordinary care, then the occurrence in question was caused Solely by the negligence of a third party or parties over whom these defendants had absolutely no control.' (Emphasis added).

This pleading is sufficient to raise the issue of whether Lamb's accident was caused solely by the negligence of Fisk. Agnew v. Coleman County Electric Cooperative, Inc., 153 Tex. 587, 272 S.W.2d 877 (1954).

The court of civil appeals wholly fails to make any mention of the antagonistic interest between Fisk and Shell or the issues that were actually submitted for the jury's determination as to the negligence of Fisk, the negligence of Shell and the Sole negligence of Shell, together with an issue as to the negligence of Ferguson or Fisk (Special Issues 23 through 37; Special Issue 28A).

Shell sought no affirmative relief against Fisk. Nevertheless, Shell's pleading, and those of Respondents (that Ferguson was negligent), alleged issues of fact that could have resulted in ultimate liability to Fisk (because of its indemnity agreement with Ferguson if answered in the affirmative). For that reason the trial court correctly allowed Fisk six peremptory challenges. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965).

At this early stage of the case, the time at which counsel for the respective parties examine prospective jurors and make their strikes, it must be said that under the pleadings the interests of Ferguson and Fisk and Shell were antagonistic issues with which the jury might have been concerned. Tamburello v. Welch, supra.

Having determined that the district court did not err in allowing Fisk six peremptory strikes, it becomes unnecessary to discuss Petitioners' contention that such action of the trial court, if error, was harmless. See M. L. Mayfield Petroleum Corporation v. Kelly, supra, and Ralston v. Toomey, 246 S.W.2d 308 (Tex.Civ.App.1951, writ ref'd n.r.e.).

The court of civil appeals held that the trial court erred in instructing the jury to return a verdict for Ferguson. Prior to a discussion of Petitioner Ferguson's point that the court of civil appeals erred in so holding, a factual background must be set forth. ² The space in which Lamb was working when he fell from the ladder was under the control of Ferguson, i.e., Ferguson's work in that area had not been completed, and the area had not been turned over to Shell. An electric switchboard was located in another space from which power lines led to various areas of the Shell construction. The space containing the central switchboard was under the control of Shell, and at the time of this occurrence, Shell was conducting an employee training program utilizing portions of the switchboard.

One aspect of the central switchboard was the operation of an alarm system. Alarm units were to have been placed at various locations in the building, and wires connected to these alarm units were to lead back to and terminate at the switchboard. A single switch on the central board sent power to each of the units in the alarm system. Shell had accepted control of the alarm switch. In the course of its training program, Shell employees activated the switch on occasion, thereby energizing all alarm system wires which were terminated into the switchboard.

In the space in which Lamb was working there was an alarm system wire, one end of which was terminated at the switchboard. Subsequent to Lamb's injury, it was discovered that this wire was not connected to an alarm unit, but instead, it was coiled at its loose end and taped to a pipe in the particular area in which Lamb was working. The jury found that Lamb sustained a shock which caused him to fall from the ladder. The jury failed to find that a Shell employee turned on the switch on the morning of Lamb's injury.

The evidence conflicted as to the exact nature of the work being performed by Lamb on the day of this occurrence. Vestal, a Fisk employee and the supervisor of Lamb, testified that when Lamb was assigned the day's work, this alarm circuit was properly terminated at the switchboard on one end and was connected to an alarm unit in the space in which Lamb was working. Vestal testified that he had assigned to Lamb and Lannon (another Fisk employee) the task of relocating an already completed alarm circuit. Lannon, Lamb's co-worker, testified that he and Lamb were assigned the task of installing this particular alarm circuit, and that they were in the process of doing so when...