Tyler v. McDaniel

• Decision Date: 08 January 1965
• Docket Number: No. 16439,16439
• Citation: 386 S.W.2d 552
• Parties: Glenn A. TYLER, Appellant, v. C. A. McDANIEL et al., Appellees.
• Court: Texas Court of Appeals

Page 552

386 S.W.2d 552

Glenn A. TYLER, Appellant, v. C. A. McDANIEL et al., Appellees.

No. 16439.

Court of Civil Appeals of Texas, Dallas.

Jan. 8, 1965.

Rehearing Denied Feb. 5, 1965.

Wm. Brode Mobley, Jr., Corpus Christi, for appellant.

Shafer, Gilliland, Davis, Bunton & McCollum, W. O. Shafer, Odessa, Leachman, Gardere, Akin, Porter & DeHay and George P. Gardere, Dallas, for appellees.

BATEMAN, Justice.

Appellant Glenn A. Tyler sued appellees C. A. McDaniel and L. A. Beecherl, trading as McDaniel and Beecherl Company, to recover damages for personal injury. The Standard Insurance Company intervened to recover sums it had paid to and for Tyler under the Workmen's Compensation Act. The court rendered summary judgment that plaintiff and intervenor take nothing. They both gave notice of appeal but only Tyler perfected his appeal.

A summary judgment is authorized under Rule 166-A, Vernon's Texas Rules of Civil Procedure only when there is no genuine issue of material fact, and the burden of demonstrating the absence of such an issue is upon the movant. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. In determining whether this burden has been carried, the reviewing court must view the evidence in the light most favorable to the party opposing the motion and resolve all doubts as to the existence of a genuine fact issue against the party moving for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562. A careful study of the record in the light of these rules persuades us that the summary judgment was correct and should now be affirmed.

Facts

Appellant was severely burned when a metal guy wire which he was handling came in contact with a highly charged, uninsulated electric wire overhead. This occurred while appellant was on premises occupied by appellees under an oil and gas lease. Appellant was an employee of Texas Oil Well Service Company. He alleged that he was a member of a four-man crew working for said company in the pulling of tubing and other work on an oil well owned by the appellees, and that this work was pursuant to a contract between his employer and appellees. Additional facts presented to the trial court at the hearing of the motion for summary judgment are thus summarized in appellant's brief:

'Although appearing to be lengthy in nature, the Appellant desires to set forth for the benefit of the Court, all of the facts at his disposal and to his knowledge. Therefore, the verbatem (sic) statements as contained in the Appellant's affidavits, in opposition to Appellee's Motion For Summary Judgment, as well as the paraphrasing of facts to be considered by the Court, will be set forth as fully and as completely as is possible.

'Answers, pursuant to questions asked of Glenn Tyler*, as set forth in Appellee's Motion For Summary Judgment, are that:

'He had been doing well servicing work for something like nine (9) years before this accident happened; that he would consider himself an experienced well servicing man, and he knew just about what it was all about to do work of this kind; that the office of the Texas Oil Well Servicing Company was approximately a quarter mile or a half mile from the McDaniel-Beecherl lease where he was injured. He didn't remember whether he could see the lease from the yard or not, it wasn't too far. He might have seen it, but he didn't know. He knew that he was going to the location about six o'clock on the morning of the accident, which was on June 5th, 1961. He considered Mr. Ed Roberds his boss. He was on a four man crew consisting of Hightower, Frank Hull and Cecil Hull. Hightower and he went in the pulling unit and the Hull boys went in the pick-up truck to the location; that the location was not too far off the road; that while they were standing in front of the office, before going to the well, Mr. Roberds said something about high lines around the well. He remembered that Roberds said that there were high lines at the well, watch it; that he took it to mean that he was to watch out for high lines around this location. He understood that high lines are electric lines and that they were around the location and he was to watch out for them. Mr. Roberds hollered this out as they were leaving the yard and he told the whole crew. He did not remember the exact time of the accident. Hightower backed the truck almost to the well and then they went out to the pick-up truck and changed clothes. They hadn't been on the lease more than thirty minutes or an hour and it hadn't been more than thirty minutes or an hour since Mr. Roberds had told them to watch out for the lines. As they drove on the lease they had to drive under the high lines, under some of them. He saw two (2) that they had to go under. (meaning they had to drive under) As they got out of the truck he could see the high lines; they were not hidden, but he did not remember how close they were to the location. He knew what the lines were and knew that they were electric lines and knew that they were dangerous and he had known that all of his life. Mr. Hightower did not say anything about the wires after they were on the location, nor did any of the other members of his crew; they did not even talk about them anymore. There wasn't any need to talk about it because they knew they were there, and nobody had to tell him, and nobody had to tell him high lines were dangerous because he knew that. After arriving at the location, Hightower parked the truck himself and nobody told him where to park the truck. He picked out where to park it himself. Tyler could see where he had parked it; Tyler didn't tell him to move it or anything like that; Tyler said nothing to him about moving the truck. No one had told Tyler that the electricity had been cut off and as far as he knew it was on.' (Italics ours)

'Glenn Tyler has submitted a sworn affidavit, repudiating the deposition, which was taken in Galveston; that his deposition was made during the time he was undergoing plastic surgery and medication; also, since his injuries, and up to the time that he had given the deposition, he had had very horrible nightmares and hallucinations as a result of the injuries; that he had heard that he had been warned by several people, and that he felt that he must have believed at the time of the deposition, that he had received a warning. However, since he is in a more retional state of mind, he recalls that he did not hear any warnings from this dangerous condition that existed at the well, either before going to the site where the accident occurred, or after arriving at the site where the accident happened. He states that the main reason he did not hear any warnings from anyone was due to the fact that he had been hard of hearing since 1949. He went to the Veterans Hospital in Temple by reason of his defect in hearing and was given a hearing aid at that time. He was supposed to have worn it at all times, but didn't on this particular date because it would interfere with his work. At the time of the accident, he did not have it on. Marvin Hightower, who was in charge of the crew, knew that he was hard of hearing. He further states that Mr. Roberds, his boss of the Texas Oil Well Services, in Odessa, Texas, knew that he was hard of hearing, and that the two (2) Hull boys knew that he was hard of hearing; that, therefore, he did not hear any warnings of any kind from anyone the morning of the accident, because he was not wearing his hearing aid at the time. He stated that he knew his work, and knew what he had to do, and no one had to tell him how to do it after he got out on the well site; that because many people had told him that he was warned, he felt that in his own mind he must have heard a warning, but, that it would have been almost impossible for him to have heard any warning, because he did not have his hearing aid on at the time of the accident. He stated further, that it could have been that the reason he did not see the lines was because of the sun coming up in the East, and because of an optical illusion which might have been created. He states further, that it was the first time that he had been on this lease, and the first time he had been around this particular well; that he had no previous knowledge whatsoever of the condition of the well, nor exactly where the high lines were situated around the well, that at no time did anyone tell him that the electrical lines were directly over the well that they were working on, nor did anyone tell him that the lines were not insulated.

'Glenn Tyler's affidavit as to the defect in his hearing is substantiated by a certification by an attending physician, Roland O. Peters, M.D., signed the 2nd day of August, 1949, to the effect that he did have hearing trouble; that it seemed to be getting worse, and that his diagnosis was a ruptured tympanic membrane, middle ear deafness, progressive.

'Glenn Tyler submitted a subsequent affidavit wherein he states that he had been employed by Texas Oil Well Services Company since April, 1961, (approximately two (2) months before the accident); that he was instructed to go with the pusher, Marvin Hightower, to the McDaniel-Beecherl lease on the morning in question, at about the time in question, and that they were to pull rods and change a pump on the lease; that the work usually takes three or four hours to complete; that the mast pole was raised, and a cable extended over the end dropping near the ground and the cable is used to pull the rods and do other work on oil wells; that the mast pole is equipped with four (4) guy lines and the guy lines are usually used to secure the pulling unit or truck after the mast pole is raised; that after arriving at the lease, he got out of the pulling unit and walked over to the pick-up truck and changed clothes; that he knew that the first thing to be done was to stabilize the mast pole on the back of the truck; and that this is done...