Westbrook v. Watts

• Decision Date: 29 April 1954
• Docket Number: No. 3165,3165
• Citation: 268 S.W.2d 694
• Parties: WESTBROOK et al. v. WATTS.
• Court: Texas Court of Appeals

Page 694

268 S.W.2d 694

WESTBROOK et al. v. WATTS.

No. 3165.

Court of Civil Appeals of Texas, Waco.

April 29, 1954.

Rehearing Denied June 10, 1954.

Kennedy & Granberry, Crockett, for appellants.

Sprruiell, Lowry, Potter & Lasater, Tyler, for appellee.

TIREY, Justice.

Plaintiff brought this suit to recover the balance due upon a written contract for the drilling of an oil well and other obligations due him in connection with the completion of the contract. He itemized and verified his claim according to Rule 185, Texas Rules of Civil Procedure, as amended. The jury in its verdict found that the surface casing furnished by defendants for the first well was defective and that it was a proximate cause of the loss of the hole, and that plaintiff's employees ran the first string of surface casing in the well in a good and workmanlike manner. The court overruled defendants' motion for judgment non obstante veredicto and granted plaintiff's motion for judgment, and in the decree we find this recital: 'And the jury having duly returned its verdict the same was accepted by the court without objection from counsel. Based upon the said verdict and the uncontested facts, the court finds that plaintiff should recover judgment against the defendants as herein provided,' and decreed that plaintiff recover from defendants jointly and severally the sum of $6,231.39, with interest at the rate of six per cent per annum on $571.39 from January 1, 1951, and on the balance of $5,640 from February 1, 1950. Defendants seasonably perfected their appeal and this cause reached us on transfer by order of our Supreme Court.

(Perhaps were should say that this controversy arose in this manner: After the appellee had drilled the first well to a depth of a little more than 800 feet, he ran the surface casing and thereafter the appellants employed Halliburton Oil Well Cementing Company to do the cementing of this surface casing. When appellee undertook to resume drilling, some difficulty was encountered because the surface casing in some manner had either parted or broken and made it impossible for him to drill through the obstruction and reopen the hole and it became necessary for appellee to 'skid over' and drill a new well. There is no controversy about the drilling of the second well and this controversy involves the expense of drilling the first well.)

The judgment is assailed on four points. They are substantially: (1) The error of the court in failing to submit to the jury appellants' requested special issues Nos. 1 and 2; (2) the error of the court in its definition of good and workmanlike manner contained in the charge; (3) the error of the court in failing to grant appellants' motion to instruct the jury to return a verdict in their favor; and (4) the error of the court in failing to set aside the verdict of the jury because the verdict was so contrary to the overwhelming weight of the testimony as to shock the conscience of the court.

Appellee's Counter Point 1 to Appellants' Points 1, 3 and 4 is: 'The failure to run a measuring line at the time surface casing was cemented is no defense because this is a part of the cementing operation and by the written contract defendants agreed to furnish and supervise the cementing operations, thus there was no duty on plaintiff to run a measuring line and the failure to do so cannot be the basis for a charge of negligence against plaintiff.' We are in accord with this view.

Appellants here, who are designated as 'the owners' under the written contract, had the following obligations:

'2. Equipment and Labor.

'a. Furnished by Owner: Owner, at his expense, shall furnish the services and materials required of him in said specifications, and in addition thereto, all casing (both surface and production), tubing, wellhead, connections, separators, flow lines, and other completion equipment installed in or upon said well and location and all required services and equipment of third persons for drill stem tests, side wall cores, casing performations, electrical logs, cementing (including surface and production casing and squeeze jobs), and all cement so required. * * *

'4. Owners Prerogatives, Access, and Notice. The size and amount of casing (both surface and production) to be set, and the time, place, manner, and extent of all cementing, coring, testing, electric logging, perforating, squeezing, and completing said well shall be determined by owner and conducted accordingly. Owner and his nominees shall have access to the derrick floor and premises at all times, shall be furnished complete samples and full information at the times and places directed by him, and shall be notified and afforded reasonable opportunity to be present and to observe all coring and testing.'

In view of the foregoing provisions of the contract, and since appellants recognized and accepted the obligations of the contract and employed the Halliburton Oil Well Cementing Company to do the cementing job, it is obvious that the failure to run a measuring line at the time the surface casing was cemented is no defense against appellee because this is a part of the cementing operations and there was no duty on appellee to run a measuring line and the failure to do so cannot be the basis for a charge of negligence against him.

Appellants' Requested Issue No. 1, which was refused, asked whether plaintiff was negligent in failing to run a measuring line, and No. 2 asked whether such failure was a proximate casue of the loss. As we have previously stated, a complete answer to appellants' position is that there was no duty on appellee to run a measuring line under the terms of the contract and we see no reason why this discussion should be labored. "It is an elementary principle of the law that negligence is a failure to observe a legal duty, and when no duty exists, no legal liability can arise on account of negligence." Point 5, City of Wichita Falls v. Swartz, Tex.Civ.App., 57 S.W.2d 236, 237, no writ history. See also Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, n. r. e.; 30 Tex.Jur. 649; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508. See also Meier v. Thompson, Tex.Civ.App., 248 S.W.2d 493, points 2-4, page 499, n. r. e., and cases there collated. Also City of Bryan v. Jenkins, Tex.Civ.App., 247 S.W.2d 925, points 4-6, page 928, n. r. e.

We come now to discuss appellants' complaint to the definition of 'good and workmanlike manner' that the court gave in its charge: 'By the...