Steeger v. Beard Drilling, Inc.

ON MOTIONS FOR REHEARING

In our original opinion we sustained petitioners’ points of error and severed into one cause respondent’s suit against petitioners based on the written contract; as to this cause we reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court granting petitioners’ motion for summary judgment. We severed into another cause petitioners’ suit against respondent by way of a cross-action, and for the reasons stated affirmed the judgment of the Court of Civil Appeals remanding the cause to the trial court for a new trial.

On rehearing, petitioners have moved this Court to enter an order dismissing with prejudice their cross-action against respondent, and that the judgment of the trial court denying respondent any recovery on its suit against petitioners be affirmed. Respondent has filed an instrument stating that it does not oppose the motion to dismiss, but in its motion for rehearing insists that under the general remand of the case by the Court of Civil Appeals, it is entitled to another trial of its suit against petitioners based on negligence.

In its original suit against petitioners, respondent plead a cause of action based on allegations of negligence, together with the cause of action based on the contract. The latter was the subject of this appeal, with respect to which we held adversely to respondent in our original opinion. This was the severed cause in which we reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court. We did not include respondent’s suit against petitioners based on allegations of negligence in the severed cause remanded to the trial court for a new trial. This was because of the fact, as recited in the opinion of the Court of Civil Appeals, and in our original opinion, that the case involving negligence was tried to a jury which found that petitioners were not guilty of acts of negligence proximately causing damage to respondent. It further appeared to us that respondent in its briefs recognized that its suit for negligence (as well as petitioners’ defense to respondent’s suit asserting negligence on the part of respondent) had been finally determined. In speaking of petitioners’ defense of negligence against respondent’s suit, respondent in its application for writ of error asserted that petitioners were not entitled to a second trial of their negligence defense because “the jury found against them. Where *689is the justice of allowing them to do the same thing a second time ?” Also, respondent in its post-submission brief recited that "the negligence issues were fully tried to the jury which found that neither party was negligent. * * * The fact findings of the jury and Court of Civil Appeals are final here, since there are no ‘no evidence’ points before this Court.”

However, as previously mentioned, respondent in its motion for rehearing insists that it is entitled to another trial of its suit against petitioners based on negligence under the general remand of the case by the Court of Civil Appeals; and, alternatively, that we erred in not remanding the case to the Court of Civil Appeals for its determination of respondent’s points of error as appellant before that Court involving its action for negligence, and which were not considered and decided by the Court of Civil Appeals.

Respondent as appellant before the Court of Civil Appeals urged thirteen points of error. Its first three points presented questions concerning the written contract between the parties which was the subject of our original opinion. Its fourth, fifth, sixth1, seventh1, ninth1, tenth and eleventh points presented errors pertaining to the judgment of the trial court in favor of petitioners on their cross-action which petitioners have moved to dismiss. The twelfth and thirteenth points asserted error by the trial court in denying respondent’s motion for summary judgment “in its favor on the verdict of the jury and the undisputed evidence”; and in sustaining the motion of petitioners that respondent take nothing and that petitioners recover on their cross-action. The argument under these two points was limited entirely to the contract action; no error was asserted with respect to respondent’s unsuccessful suit based on negligence.

Respondent’s eighth point of error in the Court of Civil Appeals was as follows : “The trial court erred in overruling the plaintiff’s motion for mistrial based on the ground of prejudice, caused by defendants eliciting before the jury evidence that plaintiff recovered on its insurance for the damage to its drilling rig.” The Court of Civil Appeals did not consider this point since the whole basis of the reversal and remand of the case by the Court of Civil Appeals was its disagreement with the trial court in the construction of the contract pertaining to respondent’s suit in contract.

Respondent’s suit was to recover the value of its drilling rig which was destroyed by the fire resulting from the well blowout. The value of the rig was the subject of dispute between the parties. The witness O. F. Abbott was offered by respondent for the purpose of establishing the value of the rig. He testified that its market value was $120,000.00. The witness was required to produce his records pertaining to the equipment for purposes of cross-examination. Among the figures contained in the records was that of $77,410.71. The following cross-examination ensued, the questions being asked by counsel for petitioners and the answers being those of the witness Abbott:

“Q. Sir, have you brought with you the records we talked about yesterday?
“A. Yes, sir, I have. It looks more like a work file, but it is primarily copies of records. It is available for any scrutiny. I would be glad to explain any part of it.
“Q. All right. May I take a look at them for a second ?
*690“A. Yes, sir. It is in date order, that is the oldest record is in the back.
“Q. Starting right in here shortly after this blowout occurred, Mr. Abbott, I note here in your records a notation of certain figures and a total figure. What is that, sir?
“A. That particular page is Joe Beard’s handwriting and it is an estimate on what it would cost to re-do or put that rig back in working order. That is certain items are new and some are to be repaired. Those are the main things that he needed completely.
“Q. In determining what the damage to the equipment is worth isn’t it very material to make an estimate of what it would cost to repair it?
“A. I think Joe had made some inquiry to certain manufacturers toward what the material would cost to repair it.
■“Q. Sir, I don’t suppose my question was clear, but if you have got some damaged equipment sitting here at a particular point, and you are trying to figure out what the damaged equipment is worth, isn’t it important to find out what the damaged equipment is worth to find out about how much it would take to repair it and get it back in good condition ?
■“A. I can’t give you a direct answer except this, if there was a swivel manufactured by Brewster Company and they would take it back in their plant and repair it and guarantee it as good as new for X dollars it would be to me as vendor, as seller, no question what the swivel was worth. It is .as good as new after they repair it.
“Q. Isn’t it true that what Mr. Beard thought that it would take to repair this rig and put it back in good condition, according to this notation we are talking about, is $77,410.00?
“A. Well, that was the amount of the insurance check we received. Here was one estimate here, the next day after more figures was run checking with manufacturers of what was available. This is my handwriting, it jumps up to $72,000.00. That doesn’t take into consideration a lot of labor, welding and many unforseen things that cannot be entirely estimated at the time to put a rig together.”

The foregoing reveals that the witness Abbott volunteered the information about insurance in an answer which was not responsive to the question propounded. The matter to which the questions were directed were proper subjects for cross-examination. There is no evidence that the particular notation in the file produced by the witness Abbott for use by counsel for petitioners in cross-examination was identified •in the file as the amount of insurance paid respondent for the loss of the rig. We find no error in the action of the trial court in overruling respondent’s motion for mistrial filed after the evidence was closed, and based on the foregoing. Cf. Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759, 761; Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938, 940.

Respondent’s motion for rehearing is overruled. On the Court’s own motion the judgment rendered and entered herein on July 17, 1963, is set aside, and judgment is now rendered as follows:

The judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause for retrial -is reversed. Insofar as the trial court’s judgment denies respondent a recovery against petitioners, it is affirmed. Insofar as the *691trial court’s judgment awards petitioners a recovery of $43,230.88 against respondent on their cross-action, it is reversed and the cross-action is dismissed with prejudice.

All costs are apportioned two-thirds to be paid by respondent and one-third by petitioners.

. The Court of Civil Appeals considered and overruled respondent’s sixth, seventh and ninth points of error. It seems clear that the Court regarded these points as presenting error with respect to pe-titioners’ recovery against respondent on the cross-action. We concur in this construction of the points and the argument thereunder, and in their disposition.