*3 BISSETT, Before YOUNG and KENNE- DY, JJ.
OPINION
KENNEDY, Justice. sounding is an action brought by appellee against appellants issues, In response special others. jury appellee found that various acts of appellants Perma Company Stone and T.G. Glispin (herein referred collectively Stone”), “Perma appellant Victoria Cooperative Company Electric (hereinafter Co-op”) “the constituted negli- gence and proximate appellee’s causes of injuries, and allocated fault as Per- follows: 60%, 30%, ma appellee Stone stated, 10%. For the reason hereinafter we reverse and remand.
The incident made the basis of this suit 2, 1977, appel- occurred on November when live, lee energized came into contact with a operated by electrical line owned and time, Co-op. appellee At the was in the employees was to National’s employ Compa- of National Products Stone furnish Steel ” ny (hereinafter “National”). National “a which to work.... place safe in the engaged building erection a metal maintaining an action in duty to requisite Vollmering1 property of one Travis contract, Montgom- may be created tort purchased the building who from Per- Scharrenbeck, Tex. ery Ward & Co. v. ma in its disassembled state. Perma Stone (1947), and we find 153, 204 purchased building Stone had from Na- Perma the terms Stone/National tional, and had contracted with National for to above to be evidence contract referred its erection. such. Appellee compensation filed his worker’s asserts that owed no Perma Stone next pri- claim and received benefits thereunder have the lines de-ener- filing against appel- the instant suit gized as a matter of law. or relocated lants. filed ac- Appellants third-party their this, to Tex.Rev.Civ. we cited *4 against seeking indemnity tions National 1436c, 6,3 wherein it is Stat.Ann. Art. Sec. responded and contribution. National with provided; summary its judgment motion for which corporation any person, firm or “When trial granted by court. any func- temporarily carry to desires points The first of error to be addressed in tion, or closer activity, operation work which, sustained, if will be those would voltage overhead any high to proximity judg- a require reversal rendition Act, by per- this permitted line than ment, or a thereof. In its second to persons responsible for work son or error, argues Perma that there is Stone opera- promptly notify shall be done duty to any appel- evidence that it owed (Vernon’s voltage line.” high tor of the axiomatic, course, that liability lee. It is 1980) (Emphasis supplied.) predicated upon negligence2 cannot be in that it was position is Perma Stone’s duty plaintiff absence a owed to the the work “responsible National that was by Negli- 40 Tex.Jur.2d defendant. is argument done.” This without gence, p. (and 122-24 the numerous § merit. therein). (and In reviewing cases cited given an instruction jury other) points, “no we will evidence” follow 1436c, of Art. concerning requirements review now familiar standard of as set thereto, made objections Sec. 6. No were Alviar, in out Garza v. to the effect that requested, or instructions (Tex.1965). to Perma language inapplicable such initially contends Perma Stone Therefore, any complaint concern Stone. National, that, per as its contract with of it has been jury’s application ing hence, (and, National Na only obligation to Tex.R.Civ.P.Ann,, Rule on appeal. waived employees) prepare was to foun tional’s 1976). (Vernon’s Perma Stone’s building. indi dation for This stance number two overruled. reading selective of that cates a somewhat the Co-op’s attention to next turn our instrument, clearly which is in evidence and 4 to duty appel- that it owed no B F that Perma contention states in Subsections place work. All of Vollmering in trial a safe in which to 1. Mr. was a defendant fault, court, proximate but was found to be free of to be causes were found these appeal. injuries. not a to this and is appellee’s found 2. of Perma Stone Those omissions 3. Article 1436c is entitled: (1) jury to be were its: failure “Safety engaged in persons in activities notify Co-op in time to have the lines lines; voltage high re- proximity electric (2) notify question de-energized; failure relocated; (3) strictions.” Co-op in time have the lines Vollmering notify or Mr. and Mrs. failure Co-op found The omission be de-ener- National the lines would not prox- jury negligence and a 1, 1977, constitute gized or relocated November injuries appellee’s was its failure provide appellee cause of requested; (4) imate failure lee. We will discussion with a Much preface testimony empha- of Mr. Roland’s they apply Heinold, recitation of the to these facts sized especially that of Mr. those points of error. portions procedures. concerning proper the incoming call indicates a matter of Roland, who Eugene Mr. was the Co-op’s concern,” “some urgency” or “some the dis- Superintendent Line time of the acci- patcher a should send out crew as soon as dent, Heinold, and Mr. Kenneth who was possible, around for 24 or and not wait employed by its service depart- hours. If information comes to the atten- time, ment at that testified. Their testimo- tion which dispatcher indicates that ny November, shows Mr. Hei- there is on underneath a line building going duty nold’s as dispatcher was to field incom- to the the line is close work or ing calls concerning service or assistance, construction, request and a is made that and to either dispatch radio, a crew by out, someone would come indicate “job fill out a order” and place it in a “some urgency.” unequivocally Mr. Roland basket for a crew to take care of later. stated that when such is the Co-op job Such order was filled out by Mr. has a a crew out as send soon as Heinold concerning Vollmering proper- possible, and failure to do so would be ty on 1st, although November Mr. Heinold breach duty. of that could not date, recollect on what or at what time day, he had actually received the Both witnesses testified road crews call. 1, 1977, were available on November *5 did,
He however, remember could have having re- been to the Vollmer- dispatched call, ceived gist such a ings the of the- message by radio. It would have taken them of which was that there was building in approximately one half hour to two hours process on Vollmering the property there, which get to and fifteen minutes to accom- lines, would be close to the and a request plish a temporary disconnect. was made by the caller to have someone Co-op’s The that no duty contention was from the Co-op come and “check it out.” (1) owed appellee is twofold: no evidence of (Mr. Heinold did not know who the caller and, (2) common-law no duty duty as a was, but recalled woman, that it was a and matter predicated of law. The latter is
recalled assuming was that it Mrs. Vollmer- upon 1436c, Art. 6. Sec. ing.) He knew from the caller that the building lines, was “close” to the but did Co-op’s As common-law regards the not know how (Nor, close. apparently, did duty, it since appellee is asserted that ad inquire.) he having mitted to worked around electric being
Mr. previously, Heinold lines and aware of the further stated that if by told involved, a caller that danger work was there existed no being duty done under lines, live and a request part was the of the Co-op. made to have See Coleman v. something it, done Corp., 701, about Hudson 455 would be a Gas & Oil S.W.2d matter of him, “some concern” (Tex.1970); Bailey to 702 and Montez given would be priority. 108, the caller Cooperative, indi- Electric 397 S.W.2d 112 cated that the activity was getting 1965, close to — Amarillo lines, then the “proper thing safe to is argument apparently an at would do” be to send a service crew out tempt part to on the to Co-op’s apply property as possible. soon as He “open inju- re- volenti non fit obvious” and called, instance, in this assuring the caller ria defenses. Each a dead letter. See Park, that he would have Inc., someone there as Highland soon Parker v. 565 S.W.2d possible. dispatch 512, He did not a service (Tex.1978) (abolishing open 517 Co., crew radio. defense); Farley v.MM obvious Cattle timely notify Vollmering de-energized to Mrs. Mr. and 1977. or on November question National that the lines in would not be
488 (Tex.1975) 529 S.W.2d 758 (abolishing reject contentions, and hold We these doctrine). was a com- volenti that there evidence establish duty part mon-law owed to on the Nor do the Co-op’s we find merit in con- Co-op. of the tention undisputed that is further that “[i]t we Similarly, unimpressed [Co-op] absolutely no adopted that Art. Co-op stance notice of the intention or actual commence- 1436c, a duty 6 relieved it of Sec. ment of the building construction of ... law. relied specific language matter of The mysterious telephone call [other than] upon this is the sentence last ...,” duty that no was owed appel- act: portion that of that lee, claimed, whom it is a mere licensee operator given “The of the lines shall be Co-op. as to the Lighting See Houston & not less than hours advance notice 48 Brooks, Power Co. v. 161 Tex. temporary clearances.” arrange (1960). S.W.2d 603 Co-op takes the position Co-op is the taken position question of duty in the such manifests an intent on of the part case at directly bar is governed by Brooks. absolutely the onset Legislature forestall We find distinguishable. the two readily hours, its duty act on regardless surrounding of the circumstances First issue of notice. clearance, request temporary Brooks the court held that there despite admission any request having been made Roland, act as employee, Mr. power company de-energize agree. We possible soon as arises. cannot protect otherwise lines. 336 at holding know of no reason for the instant testimony Legislature in en purpose two representatives Co-op give some acting Section was presents adequate evidence of such a re of case it did advantage type which quest and, hence, notice of the im activity not law. enjoy Ringo common v. Gulf parted to this defendant. (Tex.Civ. Utilities *6 1978, n.r.e.). writ ref’d App.—Beaumont Additionally, inapplicable we find that the part We view of Section 6 as holding the in Brooks duty that “whatever statutory obligation upon of a imposition is owed respondent by petitioner is as the clear party requesting temporary the public member [i.e., and not licensee] ” ance, power rather than the release of the as ... an invitee.... Id. In Brooks those company duty protect from a there that evidence recited the in it has to know be ex may whom reason jured plaintiff was on working property on posed dangerous instrumentalities power company which the defendant owned its control. under an right way. Rather, easement or of that Moreover, provide, on to goes Art. 1436c refers to lines opinion power running near 7(a) (b), penalties Section parallel plaintiff to the area where the seeking temporary violation one when working injured. the case including the obligation, clearance of that us, now before as the assuming, Co-op urges power company right do, it was its lines on operating us itby be indemnified for all incurred right way an easement or of on Vollm- by the injuries as a result of occasioned appellee, undisput- who was ering property, points The error num- Co-op’s violation. of Vollmerings, an invitee of assumes edly two, three, seven, one, eight and eleven bers relationship with the same are overruled. Howard v. Jackson of the easement. holder 689, Inc., 430 appellants’ S.W.2d Cooperative, Electric now move to the We 1968, writ ref’d of (Tex.Civ.App.—Waco points error which attack the 691 County Electric cause. Bailey proximate v. n.r.e.); Montez error, contends Perma Stone point at 110. third 397 supra, S.W.2d Cooperative,
489 verdict that the is evidence contrary to the and Heinold. standard of care owed because, law, as a matter proxi the sole may be established Scott, mate cause of appellee’s injuries was the 412 party’s testimony. own Wilson v. appellee employer 299, and/or his (Tex.1967); 303 v. Guth S.W.2d Smith moment, Assuming, National. 163, rie, (Tex.Civ.App.— 557 165 S.W.2d of negligence existence Na 1977, n.r.e.). Fort writ ref’d Worth tional, we fail to negligence, see how its testimony previously hold that the detailed combined with separate negligent acts is to establish a breach of evidence of appellee, could fall within the doctrine of and to Co-op’s finding sole proximate cause. There can be proximate cause of appellee’s was a proximate one sole an injury. cause of Co-op’s points of num injuries. The Pride of Lawrence, Dallas Taxicab Co. v. four bers three and are overruled. 169,172 277 S.W.2d (Tex.Civ.App . —Amaril Likewise, our discussion thus far 1953, lo writ n.r.e.). ref’d Per- As concerns Roland, testimony of Heinold and ma negli Stone’s contention regarding dispositive of the sixth Co-op’s is gence alone, of appellee well es is now in which the legal of error and factual tablished proximate issue of sole sufficiency supporting of an injury, cause from distinguished of fault jury’s apportionment is attacked. proximate cause, arise, simply does not overruled as well. defendant, not available to the when the suit injured is between the party and the It court’s granting is the trial action in rather, party inflicting the injury; it arises for summary judgment National’s motion it is only where act claimed that of a which the basis of forms Perma Stone’s third or an extraneous was a event Co-op’s points first and the ninth error. proximate Atchison, cause. Topeka & San that, initially need be noted under Ry. Ham, ta Fe 451, Co. v. 455 S.W.2d 8306, facts of this Article our § (Tex.Civ.App. 1970, ref’d writ n.r. Statutes, (the por Revised applicable Civil — Austin e.); Dallas Tolbert, Transit Co. v. 337 tion of Workers’ Compensation Stat 617, 621 (Tex.Civ.App.—San ton ute,) immunizes National from claims An 1960, io n.r.e.); Panhandle & ex indemnity and contribution absent an Ry. Santa Fe Co. v. Ray, 221 S.W.2d press provision contrary. contractual to the 1949, writ ref’d Service, v. Commercial Inc. — Austin Co., American & Cable Chain 623 S.W.2d (Tex.App. [1st Dist.] — Houston The allegation sole regarding proxi n.r.e.); Mfg. writ ref’d Grove Go. mate cause National presents a different Cardinal Construction picture in that special issues as to inquiring *7 155 (Tex.Civ.App. Dist.] [14th — Houston its potential negligence were requested and 1976, n.r.e.). writ It is nonetheless ref’d refused. This act of the will trial court be Perma contention that was Stone’s National discussed further on. say Suffice it to for suit, to the the necessary party and that our present purposes that the evidence is highly prejudiced by other defendants were sufficient to establish a breach of Perma its absence in that a have finding could duty, Stone’s as well as support to the in been that acts of National were reached comparative jury’s negligence findings. part appellee’s injuries. responsible points Perma Stone’s of numbers four three and are overruled. Na purpose finding If the of a of
The Co-op’s fourth simply third and tional’s to determine negligence points of error also legal remaining challenge liability the extent of the of factual sufficiency support defendants, as a presence then National’s ing of v. proxi required. to suit was not Deal mate cause. We have already Madison, 409, (Tex.Civ.App reviewed the 576 S.W.2d 415 testimony of the Co-op’s 1978, employees, n.r.e.). Roland writ ref’d .—Dallas a recent factually 7(b).
case which is to of analogous sought the one relief on basis Section bar, at it was held that the trial court did The Co-op’s point ninth of error is over- not err granting plaintiff’s employer, in ruled. National, situated summary judg- as was error, point In its fifth of Perma ment. Commercial Ser- evi sufficiency attacks the Stone vice, Inc. v. American Chain & Cable findings regard jury’s dence to at supra, 623 750. We reach the However, ing is not damages. point conclusion, same and overrule Perma it briefed, and we' therefore consider Stone’s first error insofar as it Tex.R.Civ.P.; 418, Rule waived. complains this trial by action court. (Tex. v. Floyd, Nueces 609 S.W.2d the Co-op's ninth error com- Civ.App.—Corpus Christi plaint summary judg- also made basis, granted Co-op’s ment The National. finally We address ourselves however, 1436c, 7(b)5 is that Article Sec. issues special refusal to submit trial court’s provides statutory indemnity over as to inquiring the existence of against National. (1) to: failing of National We need not the merits address relocated; power to have 'lines arrange Summary judgment proceed- contention. (2) de-energized; line arrange have the
ings by are governed Rule 166-A our and, the line (3) timely notify appellee that Procedure, Rules wherein says: Civil de-energized. requested Also not been “Issues expressly presented not accompanying proximate and refused were motion, trial court written answer or issues. comparative negligence cause other shall response not be considered on court is of the lower action Id., appeal grounds for reversal.” sub- in Perma first and Co raised Stone’s (Vernon’s section (c) Supp.1982). objection op’s points tenth of error. No In construing this language, Supreme appellee. made these issues Court has held that: the refusal agree appellants “The ‘written’ not word modifies re requested issues constitutes submit the ‘motion,’ word but also the ‘an- words versible error. swer’ The response.’ and ‘other ‘issues’ settling party The absence of a required ‘expressly rule to be preclude the submis should not out presented’ pointed are those to the concerning the existence sion of issues motions, trial court written written Madison, Deal negligence. of its v. amount written mo- responses answers or 416; Keeton, Annual supra, at summary tion The term judgment]. [for Torts, of Texas Law: 28 Sw.L.J. Survey ‘answer’ in the the rule refers context of (1974). Any finding negli resultant motion, an not an- answer to an upon the absent gence binding would not be filed generally response peti- swer in deter could instrumental party, but City tion.” of Houston v. Clear Creek remain the extent of mining Basin Authority, 589 S.W.2d Madison, ing supra, Deal defendants. (Tex.1979). to file re failed trial readily apparent sponse summary to National’s motion *8 cannot, therefore, of issues calculat- court’s refusal these judgment, and be heard ed cause the rendition urge probably Nor to and did appeal. this do 434, Tex.R. Rule Co-op’s pleadings against improper National reflect an verdict. operator of 7(b) provides: owner or 5. Section Act shall be liable to the damage to such high voltage for all such line physical “If a of this results in violation Act such incurred facilities and all any high voltage or electrical contact with any such operator result of firm, as a line, corporation, person, owner overhead 1980). (Vernon provisions violating contact.” of this or association Civ.P. Accordingly, we REVERSE the action against disputed. another are judgment and REMAND the cause for a were not no reason for new agreement trial. into a settlement entering
would exist.
seeking
A
from
party is barred
contribu-
FOR
MOTION
ON
OPINION
indemnity
against
tion and
from a party
REHEARING
whom
no cause of
injured
has
action.
If appellee’s
[Citation omitted.]
KENNEDY, Justice.
cause
against
preclud-
of action
Precast is
ed by Art. 8306
then it defies reason
§
argument
by appellee
We think the
made
to suggest that Precast is a ‘settled’ tort-
in his motion for
and the case
rehearing,
feasor.
thereof,
worthy
law in
to be
one
impression
issue is
of first
discussion. The
his ar
predicates
appellants do not seek contribution and
gument
Industries,
Lucas,
on Texas
Inc. v.
indemnity
from Precast but
a con
remaining defendants. peace injured plaintiff. his with the potential inequities holding otherwise apparent. all too bar, In a the one at case would be liable for remaining defendants plaintiff’s damages despite 100% of the fact that the raises the possibility not at fault for his they were 100% VASQUEZ, Appellant, Jose Sanchez Thus, injuries. plaintiff enabled portion at least a of his recover twice for damages, remaining while the defendants Texas, Appellee. STATE of legal against employ- have no recourse er. The facts and result in Lucas bear this No. 13-81-333-CR. help out. we cannot reviewing inequitable but consider how the Court’s Texas, Appeals Court holding figures would be were the in the Corpus Christi. comparative negligence changed. issue 17, 1983. Feb. Suppose, example, jury had TXI Everman found the Discretionary Review Granted blame, each to be 5% to and deemed 25, 1983. May Disregarding jury’s Precast to be 90%. laying the entire remaining
the door of the defendants with indemnity claim for would be available unconscionable. not with the
Additionally, agree we do Com- upon Superior reliance in Lucas mercial v. American Chain Service Co., supra. and Cable the issue necessary join was whether it was employer party as a order to have deter- percentage mined, though remaining even defend- against
ant admitted that it had no claim contribution. The Court indemnity employer’s presence held that the and that necessary, defendant was not the em- granting trial court was correct in