*1 al., Petitioners, W. J. STEEGER et DRILLING, INC., Respondent.
BEARD
No. A-9409.
Supreme Court of Texas.
July 17, 1963. Rehearing 2,
On Oct. Ledbetter, Freedman,
Spafford, Hamlin Dallas, petitioners. Gay, & Coates, Botts, Shepherd & Finis Baker, Houston, firm, Cowan, with above E. respondent.
STEAKLEY, Justice. ah,
Petitioners, Steeger et as Own- W. J. contract with entered into written er, Inc., Drilling, Beard spondent, Con- *2 685 tractor, application for for writ of drilling a test well Petitioners filed for the of drilling asserting by error of Civil course of the error the Court gas. oil and In the Appeals petitioners respondent only in construction of operations instructеd its contract, respondent’s run- upholding in prepare the well as Schlumberger, right by of action under the contract. ning log of an electrical specialized services party a third whose question before under us is whether under by petitioners provided were to parties, peti- the written contract of by depth specified the contract. When the of, agreed assumed the risk reached, circulated petitioners mud was was indemnify respondent against, a loss of which, and forty-five minutes, after spondent’s dur- drilling occurring of process “pulling out while in the of operations to, ing preliminary which were fire. hole,” caught out and the well blew preparatory for, and run- before actual respondent by filed This suit was thereafter of, ning an electric log. hold that We petitioners the value against to recover tioners did not. destroy- respondent’s equipment was which ed. In answering question in the affirma- sounding tive,
Petitioners filed a cross-action it was the view the Court of Civil from in both contract recover Appeals tort and logs” that the terms “electrical respondent necessary and reasonable contract, logging,” “electric as used in the expended by petitioners controlling cost in only included not the actual running оf the (cid:127) the blowout. The court sustained trial but, electrical logs, addition, the work of summary as to judgment tioners’ motion for circulating mud and removing the drill stem portion respondent’s suit based on preliminary thereto; petitioners and that jury contract. The was tried to a case agreed respondent had indemnify party negli- found neither was the loss which pre- occurred during these gent. jury findings also of dam- made operations. paratory blowout, petitioners by ages to caused Beard, The testimony president Joe upon the basis which the trial court respondent corporation, quoted in the judgment entered petitioners on their opinion Appeals, of the Court of Civil cross-action. that the term logging” “electric gen- appeal, On Appeals erally procedure used to describe that held that the trial granting erred “whereby company like Schlumberger petitioners’ summary motion for judgment, well, comes out to lowers certain instru- and in entering judgment petitioners well, ments into shoots electric currents Further, on their cross-action. through purpose there for the of conducting trial court should have judgment rendered certain tests.” respondent petitioners’ favor of cross- parties quoted The contract between the action since the jury party found neither opinion in the full of the Court of Civil guilty negligence. However, the Court Appeals (361 889-892), S.W.2d to which we of Civil did not render quote provisions only refer. We will for the stated reason that the contract which are deemed controlling. there respondent’s was no plead- basis ings therefor since the trial court had or-
dered the respondent’s elimination plead- is our view that the answer to ings contract. So the Court Civil problem rests in the delineation of obli reversed the expressed parties gations para generally court and remanded the speaks cause for 2 graph contract which proceedings further services, in accordance with the detail of materials and equip opinion of the Court. Beard Drilling, Inc. furnished ment Own Steeger al., et 361 er, S.W.2d 888. Contractor. With pro- person petitioners, paragraph 2a engaged run the logs; : also, vides that the electric labor serv- *3 ices of the third person not to com- were position mence until the well inwas for EQUIPMENT “2. AND LABOR. the running log. of the electric “a. BY OWNER. FURNISHED Owner, expense, at his shall furnish In peti relation the foregoing, required of the services and materials tioners expense obliga assumed and risk specifications, in and addi him in said spеcifications tions E paragraph tion, pro surface and casing (both all follows: connections, duction), tubing, wellhead operations “E. RISK: The enumer- lines, com separators, other and flow (1) ated to (9) inclu- subdivisions upon pletion equipment or installed immediately of paragraph sive ‘D-2-b’ location, required all and said well and above, shall be conducted at owners persons third equipment servicеs and however, expense, provided risk and cores, tests, wall stem drill side that owner shall be liable for never logs, coring perforations, electrical negligence contractor’s or of skill want pro (including surface and cementing diligence, or or for failure contrac- squeeze jobs), and casing duction and equipment.” tor’s * required.” all cement so operation pertinent The here is enumerated n respondent, respect paragraph With paragraph (4) subdivision “D-2-b” provides: 2b logging.” “Electric “2. brief, then, petitioners as Owner BY CON- “b. FURNISHED expense agreed to at and furnish risk Contractor, at ex- his TRACTOR: equipment the services and the third required of pense what shall furnish person operation performing the of electric specifications, and an also him in said indemnify respondent logging, and to including adequate rotary drilling rig, respondent any by loss suffered during ma- preventer, and all other blowout person performance by the third of the materials, tools, equipment, chinery, operation. parties by logging electric The or services, necessary proper and labor their contract measured the risk and ex- work, except said performance in the obligation petitioners pense regarding set supplied оwner as by those to logs by labor electrical and services of im, specifications or said above forth person by petitioners engaged the third or, operation; of the may construction em- perform reasonable be other- A b, expressed, parties agreed language paragraphs peti- 2a wise phasized respondent petitioners obligated indemnify above, any them- would is that tiоners anything services from to furnish suffered loss selves person engaged equipment third time occurring during of the party and that the obli- the third logs; personnel was run- electric log, to furnish all other ning during itself services the electric hence gated respect person to the electric logs which the third would be with the time con- labor process circulating logic the well site. include trol at con- would removing drill in this is self-evident. stem. tract Re- mud aside, preparatory undisputed spondent stepped relinquished neces- services well, person precedent to actual third sarily log- electric when the control part charge. operation by petitioners not a took were the serv- Dur- engaged ging performed person engaged and labor to be time the third ing third ices
* emphasis All added.
687 control, respondent spect Paragraph gave logging. was in electric assumption protected by risk when right to determine Thus, stopped point at electric drilling the crucial would be for an tioners. log, petitioners’ indemnity obligation arose when cir- hence the mud would be person control of culated the third assumed and when the would when drill stem log- removed; provision the well execution of the electric there is no giving obli- operation. expense right ging The risk and determine would who paragraph petitioners, do gation things they defined these or be done. how would they E, precisely pre- that which responsibility coincided were the latter *4 for, and pay agreed rogative respondent had furnish and to under delinea- the responsible. tion they agreed had to be of obligations paragraphs in 2 and of5 the contract. paragraph consistency There further is agreed wherein appears major
5 of the contract it was It that the consideration provided in said “except that as otherwise the construction the of the contract be specifications, hereunder shall all work Court Civil was the conclusion As sole risk.” parties conducted at Contractors that the respondent that intended noted, exception logging the electriс employees before and its subject would to be one concerned was with which we are here tioners’ direction during and the control exceptions enumerated process of a number of preliminary the mud circulating specifications the “Owner’s being at the and removing the drill stem. The Court expense.” risk and appeared further principal- to be influenced ly by provisions of paragraph 4 of the 4 of the agreed paragraph It was also contract, quoted above. In our view as follows: contract major beginning emphasis and in constru- contract, ing the and reaching the in- PREROGATIVES, “4. OWNER’S parties, tent upon para- should be ACCESS, size AND NOTICE. 2 in graph expressed which there was (both surface casing amount of and obligations objective division and the time, set, production) and to be and the respondent intent that would furnish all place, manner and extend all cement- except expressly those services assumed coring, testing, logging, electric ing, petitioners. It cannot reasonably said be squeezing, completing and perforating, parties contemplated petition- that the that shall be determined owner said well ers would furnish the labor and services accordingly. Owner and and conducted circulating involved in the mud аnd with- shall have to the his nominees access drawing preparation drill stem times, premises and at all floor derrick operation. logging Respondent actual complete samples and furnished shall be employees step did not and its aside at this places at the times and information full they stage as would have done when him, and shall be notified directed Schlumberger charge took special- with its opportunity to afforded reasonable personnel. ized We do not all present coring observe 4, paragraph regard when considered in testing.” light provisions of the other of the con- tract, subject to be to the are consistent with provisions These construction that parties intended that Petitioners control parts contract. other employees respondent pass obligations of еlectric would assumed having tioners, expense, and that step their risk and it was would at logging aside, upon by petitioners they the exercise that were to have provided access developed by rights contractual information the drill- determine “time, place, together right manner and operations, with extent” of ing “elec- matters, logging.” with tric the enumerated determine
688 view, ambiguity- against respondent by way there no suit cross- our action, in all affirmed in the contract when considered reasons stated provisions its resort aids in construc the Court of indeed, and, remanding the cause to court unnecessary, the trial tion is therefore Nebel, trial. permissible. new not v. Wood Motor Co. 86, 150 Tex. 238 S.W.2d On rehearing, have moved duty of the contract construe the Court to this dismissing to enter an order instrument, as an to consider entire prejudice with against their cross-action part other so that every part each respondent, and part any other meaning effect and of one denying any recov- process may part determined. This he ery on its suit be af- parties clear makes the intent of the firmed. Respondent has filed an instrument they extent intended to which stating oppose that it does not motion to Abilene hound. National Citizens Bank dismiss, rehearing in its motion but in- 333, Co., Ry. Texas & Tex. 150 P. general sists under the remand of the *5 Spence Howe & S.W.2d 1003. also See by case Appeals, the of it Court Civil is en- Tex., Corp., Construction Co. v. Gulf Oil against pe- titled to another trial of its suit Smith, 631, and 365 S.W.2d Ohio Oil Co. negligence. titioners based on Tex., 365 S.W.2d In original against petitioners, its suit respondent’s We sever into one cause respondent plead a action based cause of on against petitioners to the value suit recover allegations negligence, of together with destroyed equipment, its which we of as to cause the of action based on the contract. judgment the of Civil reverse of the Court subject appeal, latter The was the of this Appeals judgment affirm the of the and adversely with held to we to petitioners’ motion trial court for granting original opinion. in our This summary judgment. the was severed cause in which we re- judgment versed the of Court оf the Civil peti We sever into another cause Appeals judgment affirmed the suit tioners’ in the form a cross-action of respond- We did not include court. respondent. cause, to against As this petitioners against ent’s suit based on alle- opinion thereon, an expressing without we gations of negligence the severed cause the of judgment affirm the of Civil Court remanded the trial court for a new to trial. Appеals remanding the case the trial to fact, was because as recited in This for new trial. court Affirmance of the opinion Appeals, the Court the of of Civil Appeals of judgment of the Court Civil opinion, original our that the case extent this since no error here jury was to a involving negligence tried by petitioners against judgment asserted petitioners that were which found not remanding reversing judgment of negligencе proximately of of guilty acts petitioners trial court for on their cross- respondent. causing damage to further action. appeared us that in its briefs FOR REHEARING MOTIONS ON negligence (as its suit recognized that respond- opinion pe- petitioners’ as defense to original sustained well we In our part asserting negligence suit points error and ent’s of severed into titioners’ finally been had determined. respondent’s against respondent) of suit cause one of contract; petitioners’ negli- defense speaking of the written based on suit, respondent respondent’s against gence we reversed cause of this application for writ of error asserted Appeals its affirmed the Civil of Court not entitled to were sec- that granting of the trial negligence defense be- ond trial summary judgment. motion for tioners’ against them. jury “the found Where petitioners’ cause into another cause severed We error point of eighth Respondent’s justice them do allowing is the as fol Appeals was Also, Civil respond- the Court of ?” thing same a second time overruling : that lows “The trial court erred post-submission recited ent in its brief based plaintiff’s motion mistrial fully tried negligence "the issues were by defend party prejudice, caused ground neither that jury which found * * * findings jury ants evidence fact before the eliciting The negligent. plaintiff Appeals are recovered insurance jury on its Court Civil damage here, rig.” evidence’ Court drilling final are no ‘no its since there point Appeals Civil this points did not consider before this Court.” since basis of reversal whole mentioned, re- However, previously Civil by remand of case the Court of in- spondent rehearing motion its disagreement was its its it is entitled to another trial sists that con trial court in the construction of the negligence suit based on in con pertaining respondent’s tract suit general case under the remand of the tract. Appeals; and, alterna- Court tively, remanding we erred not Respondent’s the val- suit recover was to its case to of Civil the Court destroyed ue of its drilling rig which was respondent’s er- points determination resulting the fire from the well blow- involving apрellant ror before that subject rig out. The value of negligence, which were its action for dispute parties. wit- between the not considered and decided the Court respond- F. ness O. Abbott was offered *6 Appeals. Civil purpose establishing val- ent He market rig. ue of the testified that its Respondent appellant Court before the $120,000.00. witness was value was The points urged thirteen produce pertaining his to recоrds ques- points presented first error. Its three equipment purposes cross- to tions written contract be- concerning the Among figures contained examination. parties subject tween the which was $77,410.71. The in the records was that of fifth, fourth, our original opinion. Its ensued, following cross-examination sixth1, ninth1, seventh1, and elev- tenth questions being asked counsel points presented enth pertaining errors to being answers those оf and the tioners of the trial court favor Abbott: witness on their cross-action which have moved to dismiss. twelfth you you “Q. brought with Sir, have points by the thirteenth asserted error yes- talked about the records we respondent’s denying court in motion terday? summary its favor on the “in jury undisputed verdict of evi- Yes, sir, I It more “A. have. looks dence”; and in the motion of sustaining file, pri- work but it like a is that take nothing copies marily of records. It is that petitioners recover on their cross-ac- any scrutiny. I available for argument points tion. The under these two glad explain any part would to action; entirely was limited contract of it. respect no error was asserted with re- May spondent’s negli- right. I take a look at “Q. unsuccessful suit based on All gence. ? them for second recovery 1. The Court of Civil considered titioners’ respondent’s sixth, con- We concur this cross-action. and overruled sev points argument points ninth It struction enth and error. seems disposition. thereunder, regarded points in their clear that these pe- presenting error with Yes, order, “Q. is “A. sir. in date Isn’t it Mr. true that what Beard thought oldest record is in the that is the it would take pair put rig
back. this it back in good condition, according to this shortly “Q. aft- Starting right in here about, notation we are is talking occurred, Ab- er Mr. this blowout $77,410.00? bott, your I here in records note Well, figures a notation certain “A. that was the amount that, figure. total What is insurance check we received. here, sir? Here was one estimate day next figures after more particular page “A. That Joe checking run with manufacturers is an handwriting Beard’s and it of what available. This it would cost to estimate what my handwriting, up jumps it put re-do or back rig $72,000.00. in- That doesn’t take That is certain working order. lаbor, to consideration a lot items are new and some are to welding many unforseen repaired. main Those are the things entirely that cannot be es- completely. things needed that he put timated at the riga time to together.” damage “Q. determining what the it is worth isn’t The foregoing reveals that the witness very an estimate material to make Abbott volunteered information about repair cost of what it would insurance an answer which was not re- it? sponsive question propounded. to the questions matter to were in- direct- “A. I think had made some Joe proper subjects ed were for cross-examina- quiry to certain manufacturers tion. There partic- is no evidence that the toward what the material would produced ular notation in the file repair cost to it. *7 witness Abbott for use counsel for n “Q. suppose my question Sir, I don’t tioners in cross-examination was identified clear, you got but if have (cid:127)in the paid file as the amount insurance equipment sitting damaged some rig. loss findWe particular point, and here at a no error in action court you figure what trying are out overruling respondent’s motion mistrial worth, damaged equipment is closed, filed after the evidence was important find what isn’t it out foregoing. based Finck Cigar Cf. damaged equipment is worth Campbell, 250, v. Co. Tex. 133 S.W.2d find out it about how much 759, 761; Mills v. Gregory, Texas Textile repair it and it get would take to 308, 938, 142 Tex. 177 S.W.2d 940. good back condition ? Respondent’s motion for rehearing is n “A. I can’t a give you direct answer overruled. On Court’s own motion the this, except if there was swivel judgment rendered and entered herein on manufactured Brewster Com- 1963, aside, July 17, is set judgment pany they would take it back rendered follows: now plant repаir in their it good judgment it as Court of Civil guarantee Ap- as new peals reversing dollars X it would be to me as the trial seller, remanding question the cause for vendor, as no retrial -is Insofar the trial court’s judg- what swivel was worth. It is reversed. recovery good they respondent a repair after ment denies .as new Insofar petitioners, it is affirmed. as the it. awards trial court’s respond- $43,230.88 against recovery cross-action, is reversed it
ent preju- dismissed cross-action
dice. two-thirds apportioned All are costs by pe- paid by respondent and one-third
titioners. Petitioners, al., et
John KIMBROUGH al., Respondents.
J. et E. WALLING A-9578.
No.
Supreme Court of Texas. 23, 1963.
Oct. *8 and Aubrey Fouts, Clark Key, Carr & J.
Lubbock, petitioners. Rauhut, McGinnis, Powell, Reavley & Wilson, Austin, Lochridge and W. James respondents.