Sun Oil Co. v. Massey

• Decision Date: 13 December 1979
• Docket Number: No. 17495,17495
• Citation: 594 S.W.2d 125
• Parties: SUN OIL COMPANY et al., Appellants, v. Sarah Sue MASSEY et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 125

594 S.W.2d 125

SUN OIL COMPANY et al., Appellants, v. Sarah Sue MASSEY et al., Appellees.

No. 17495.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Dec. 13, 1979.

Rehearing Denied Jan. 24, 1980.

Crain, Caton, James & Oberwetter, Newton M. Crain, Jr., Bean & Manning, Frank Bean, Houston, for appellants.

Helm, Pletcher, Hogan & Burrow, Michael Y. Saunders, Burks & Brush, Kirk Brush, Houston, for appellees.

Before PEDEN, EVANS and WARREN, JJ.

PEDEN, Justice.

Sun Oil Company, its employee Henry Preslar, and J.F.P. Well Service, Inc. appeal from the judgment of the trial court in favor of the plaintiffs, Sarah Sue Massey and members of her family. In January of 1973, plaintiffs brought suit under Article 4671 et seq. of Vernon's Texas Civil Statutes the Texas Wrongful Death Act, against Sun, Preslar, and Gulf States Utilities Company, seeking to recover damages for the death of James W. Massey, in March, 1972, while he was working at a Sun oil well site. The complaint against Gulf States was transferred to Jefferson County on a change of venue.

Sun ¹ later impleaded J.F.P. Well Service, Massey's employer and the independent contractor which was conducting a workover operation on the well when Massey was killed, alleging that under the provisions of their service contract Sun was entitled to indemnity from J.F.P. for any damages awarded against it to the plaintiffs.

The trial court entered judgment based on the jury verdict against Sun for a total of $309,559.76 in damages and in favor of Sun against J.F.P. for the full amount.

Sun's thirteen points of error constitute five basic contentions: 1) that there was insufficient evidence to support the jury's finding that Sun was negligent in failing to make the premises reasonably safe for Massey; 2) that there was insufficient evidence to support the jury's findings that Sun failed to warn Massey of the alleged unsafe condition and that such failure was a proximate cause of the accident; 3) that the trial judge erred in failing to find that Massey was guilty of negligence per se in violating the provisions of Article 1436c, Tex.Rev.Civ.Stat.; 4) that the trial court erred in refusing to set aside the jury's verdict because of conflicting answers to certain special issues, which conflict Sun alleges is indicative of jury bias in favor of the plaintiffs; and 5) that the trial court erred in entering judgment against Preslar, since no special issues concerning him were submitted to the jury or requested by any party.

J.F.P. assigns forty-one points of error, thirty-four of which duplicate issues raised by Sun. Six points attack the sufficiency of the evidence to support jury findings that J.F.P. was negligent and that its negligence was a proximate cause of the accident. J.F.P.'s forty-first point of error attacks the judgment against it in favor of Sun on the grounds that the indemnity agreement does not afford Sun protection against the consequences of its own negligence.

The judgment of the trial court is affirmed except that as to Preslar it is reversed and judgment rendered that the plaintiffs take nothing.

Facts

Sun Oil Company owned several pumping oil wells in the general area where the accident occurred. From time to time J.F.P. Well Service conducted reworking operations on Sun's wells, pursuant to a written service contract. In March of 1972, James Massey was a member of one of J.F.P.'s workover crews. Three other men worked under him, and in the absence of the crew's foreman, Charles Kellar, Massey was in charge.

The pump on Sun's Foster 31 well was powered by electricity supplied by visible high voltage overhead power lines. On March 13 the J.F.P. crew moved to the Foster 31 well site to begin reworking operations. In order to anchor their rig and prevent it from toppling or being blown over, one of their first tasks was to run guy wires from the top of the derrick to the ground. They had strung out and anchored two or three of them and were in the process of running another, when the cable they were handling was pulled into one of the power lines. Three members of the crew, including Massey, were electrocuted.

Dangerous condition

In response to the first five special issues, the jury found that Sun created or maintained a dangerous condition, that it knew or should have known about the danger, that it failed to remedy it by making the premises reasonably safe for Massey on the occasion in question, that such failure was negligent, and that the negligence was a proximate cause of the accident. Sun and J.F.P. contend that there is insufficient evidence to support any of these findings.

Sun contends that the well site was safe because the power lines were clearly visible and because the guy wires could have been anchored in such a way that they would not have come in contact with the power lines. The evidence as to the latter contention is conflicting. Sun presented testimony that the guy wires could have been strung out in different directions so as to avoid the power lines altogether or could have been safely anchored closer to the rig without coming too near the lines. The plaintiffs, however, presented evidence that in order to provide proper support for the rig the cables had to be anchored as far out as the crew was attempting to anchor them and that the way the cables were strung was the only proper way to guy the derrick.

We cannot say the danger was open and obvious. It was stated in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, at 459 (Tex.1972):

When one speaks of a condition as being open and obvious, the phrase means that there is no dispute in the evidence or the facts which will charge an invitee with knowledge and full appreciation of the nature and extent of danger. It means that knowledge and appreciation of the danger are considered as proved as a matter of law.

In our case there was a dispute in the evidence as to facts that would charge Massey, a business invitee, with knowledge and full appreciation of the nature and extent of the danger in encountering the power lines in question. There is evidence that the crew members were misled into believing the power in the lines had been shut off. Under the circumstances, the hazard posed by the live power lines was not obvious despite their visibility, since the location of the lines was only one component of the danger, the other being that they were charged with electricity.

Mr. Newman, the crew member who survived the accident, testified that someone from Sun had told them that the well had been shut in and was ready to be worked on. They took that to mean that the power had been cut off. His crew didn't need electrical power for its operations, and all of its members thought the power was off.

We hold that the evidence of the location and charging of the lines did not amount to proof of knowledge of danger on Massey's part and did not establish his negligence as a matter of law. See Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex.1978).

It appears that the accident which caused Massey's death would not have occurred either if the lines had been located further away from the well or if the current had been turned off prior to the beginning of workover operations, and the jury could have concluded that Sun had control over both of these conditions. There was evidence that Sun was at least partly responsible for the initial placing of the power lines unusually close to the well and also that Sun could have arranged for the electricity to be temporarily disconnected. It is obvious that Sun knew the power lines were there, close to the well. Moreover, the evidence supports the inference that its people knew or should have known that the current was on.

Thus, there was ample evidence to support the jury's findings that Sun created or maintained a dangerous condition which it knew or should have known about, that it failed to make the premises safe, and that its failure was a proximate cause of the accident. J.F.P. argues that even if that were true, Sun was still not guilty of negligence, because it breached no legal duty owed to Massey.

In order to be guilty of actionable negligence, a defendant must owe a legal duty to protect the plaintiff against injury. See generally 40 Tex.Jur.2d Rev., Part 2, Negligence § 4, and cases cited therein. When, as in this case, the defendant is an occupier of land and the plaintiff is an invitee, the defendant owes a duty to exercise ordinary care to maintain the premises in a reasonably safe condition or to warn the invitee of any dangerous conditions which the occupier knows or should know about and which are not reasonably apparent to the invitee. See generally 40 Tex.Jr.2d Rev., Part 2, Negligence §§ 44-45, 50-52, and cases cited therein; 2 Restat. of Torts 2d § 343; Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.1963).

The jury found that Sun had created or maintained a dangerous condition which it knew or should have known about and that it failed to make the premises in question safe for Massey. As was pointed out above, there was ample evidence presented to support those findings. Moreover, although no special issue was submitted which directly addressed the question of Massey's awareness of the danger, there was again ample evidence to support the inference that he did not know that the electricity was turned on. The single remaining question is whether Sun gave an effective warning of the danger.

Failure to warn

In response to two special issues submitted over objections, the jury found that Sun failed to give the warning that a reasonable person would give under the circumstances and that such failure was a proximate cause of the accident. Sun and J.F.P. attack the sufficiency of the evidence to support those findings. Sun argues that Mr. Kellar, the J.F.P. foreman, was told about the electric lines and warned his crew to be careful of them, and consequently that Sun's duty to warn was...