Cherry v. Victoria Equipment & Supply

640 S.W.2d 685
CourtCourt of Appeals of Texas
DecidedJuly 8, 1982
DocketNo. C2999
StatusPublished
Cited by1 cases

This text of 640 S.W.2d 685 (Cherry v. Victoria Equipment & Supply) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. Victoria Equipment & Supply, 640 S.W.2d 685 (Tex. Ct. App. 1982).

Opinions

MORSE, Justice.

This is an appeal from a summary judgment. The question before us is whether the appellants, Abraham Cherry and Albert Allison, met their burden of establishing a fact issue as to estoppel of appellees to assert the defense of limitations. We find that no such fact issue was raised and affirm the judgment of the trial court.

This suit arose from personal injuries suffered by Abraham Cherry and Albert Allison on October 17, 1976, when gas vented from a well ignited and severely burned appellants. Appellant Abraham Cherry, filed suit on July 14,1977, and the appellant Albert Allison filed suit on August 24,1978; neither appellant named Victoria Equipment & Supply Company, Inc. or Victoria Equipment & Supply Company, a partnership, as a defendant at that time. On September 6, 1978, the attorney for appellant Cherry took the deposition of the defendant Melvin Klotzman. Mr. Klotzman was the supervisor of operations on the well at which appellants had been burned and when asked who had reported the fire to him he testified at page 19-20:

Q An instantaneous fire? Who reported this to you?
The lease pumper.
Whose name is what?
His name was Joe Preite.
How do you spell it so we have it correct?
P-r-e-i-t-e. «J
Who did he work for? <3*
Victoria Equipment and Supply. They were the Contractor furnishing the pumpers. <1
Where are they located? Q»
Victoria. Their involvement is the maintaining charts of producing wells, [emphasis added]
Were they working on this well? <y
No. <!
Had they been hired to do any work on this well? o*
No. <
What other companies, entities or persons other than Vitol Resources, Melvin Klotzman, R & S Well Services, had any work, duty, responsibility or connection with the operation of this well other than the employer of Mr. Cherry whom I understand was cleaning out a tank on the well? <y
The production of the well?
Had anything to do with the well.
Are you referring to the work first began, are you referring to from 1973 or the work-over operation?
The work-over.
“Vitol” Tools.
What was their job?
Wire line—
What do you mean?
Wanted the hole wired, shift things, fish things out.
Were they doing actual work on this well.
No one was working on the well.
Was there anybody — was supposed to be at that time?
[687]*687A Nothing — nothing—the well was being tested or evaluating the well.
Q Who was testing or evaluating?
A No one was present because it wasn’t necessary.

Mr. Preite’s responsibilities at the well site as well as his employment by Victoria Equipment & Supply Company were further clarified on page 31 of the deposition when Mr. Klotzman stated:

A The only person that I talked to on the thing other than the Mac Services man was the pumper who informed me of the fire and wanted to know what was going on because the gate was open, and I called Mac Services and found out what was going on in relation to the vacuum truck to the— to the Borchers. He shut the well in. He found cigarettes and either one or two lighters in the tank. I can’t remember.
Q Who was this?
A Name was Joe Preite, P-r-e-i-t-e, as I’ve stated before.
Q And who did he work for?
A Victoria Equipment and Supply as I stated before.
MR. VAN WINKLE: He’s the pumper?
A Pumper.
Q (By Mr. Doherty) When did he come on the premises?
A He worked from 7:00 to 3:00- -7:00 to 4:00 every day, I suppose, checking the well’s production, the compressors, water systems, the leaks, salt water leaks, well, sanding up, so forth.
Q Who paid for his work effort on that job?
A Victoria Equipment was his direct employer, but he was billed by them to Vitol Resources.

After asking more about Victoria Equipment and Supply at page 59 and learning that it was a company half owned by Klotz-man, on page 62 of the deposition Mr. Cherry’s lawyer once again returned to the subject of Mr. Preite, at which time Mr. Klotz-man testified:

Q Now, the guy, Preite, that you previously—
A I never could pronounce his name.
Q I can’t either. He worked for a company that you owned a part of?
A Right.
Q But you had hired him, too?
A He had nothing to do with the well.
Q He was working on some other wells that day?
A He was working on eighty-nine — on other wells that day.
Q Did you invoice Vitol for his services that day?
A No.
Q Was he working for—
A Let me say this: Let me qualify it, give you a better interpretation. Vi-tol Resources are billed on the basis of producing wells — number of producing wells for a fixed fee. [emphasis added] *

No further questions were asked about Mr. Preite or about Victoria Equipment and Supply Company at that deposition. Also, there was no showing by appellants that they made further investigation into Victoria Equipment & Supply Company’s involvement with the well prior to the running of the two year statute of limitations.

The deposition of Joe Preite was not taken until eighteen months later on March 4, 1980. At this time appellants’ attorneys obtained what they say was further information which led them to amend their pleadings to join Victoria Equipment and Supply Company as a defendant. [We will hereinafter compare what had been told them in 1978 with what they were told in 1980].

The appellant Abraham Cherry joined ap-pellee Victoria Equipment & Supply Company, Inc. as a defendant on March 11,1980 and the appellant Albert Allison joined the appellee Victoria Equipment & Supply Company, Inc. on March 12, 1980. The Cherry and Allison cases were consolidated on January 9, 1981. The appellee Victoria [688]*688Equipment & Supply Company, Inc.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cherry v. Victoria Equipment & Supply, Inc.
645 S.W.2d 781 (Texas Supreme Court, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
640 S.W.2d 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-victoria-equipment-supply-texapp-1982.