LeBlanc, Inc. v. Gulf Bitulithic Company

412 S.W.2d 86, 1967 Tex. App. LEXIS 1973
CourtCourt of Appeals of Texas
DecidedFebruary 9, 1967
Docket245
StatusPublished
Cited by26 cases

This text of 412 S.W.2d 86 (LeBlanc, Inc. v. Gulf Bitulithic Company) 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
LeBlanc, Inc. v. Gulf Bitulithic Company, 412 S.W.2d 86, 1967 Tex. App. LEXIS 1973 (Tex. Ct. App. 1967).

Opinion

MOORE, Justice.

This is a suit by a subcontractor against a prime contractor wherein the prime contractor filed a cross-action and a third party action against other subcontractors. Appellant, LeBlanc, Inc., the prime contractor, contracted to construct a maintenance base for Eastern Airlines at Houston International Airport. The work consisted of the erection of a base building, together with a concrete apron or runway surrounding the building. As general contractor, LeBlanc entered into a subcontract with appellee, Atlas Air Conditioning, 1 for the plumbing and air conditioning work. The paving work was subcontracted to appellee, Gulf Bitulithic Company, 2 and the electrical work was subcontracted to Muhl Electric Ltd. 3 As a part of its contract, Atlas was required to lay a three-quarter inch underground pipeline to carry a chemical known as “var-sol.” Approximately four months after the *89 line had been laid, it was discovered that there was a leak in the line and that the escaping varsol had seriously damaged the insulation on certain electrical lines which had also been laid underground nearby. Eastern Airlines demanded that LeBlanc replace the damaged cables. Before proceeding to replace the damaged electrical cables, LeBlanc called upon Atlas to make good the damages caused by the leak in the line, taking the position that Atlas was obligated to do so under its subcontract. LeBlanc also called upon Gulf to make the repairs to the damaged electrical cables on the ground that the break in the varsol line was caused by the negligence of Gulf. Atlas acknowledged its responsibility to repair the defect in the varsol line and made the necessary repairs, but refused to make good the damages to the electrical cables. Gulf denied responsibility for breaking the varsol line and likewise refused to make good the damages to the electrical cables. The electrical system had previously been installed by Muhl under a subcontract. When Atlas and Gulf refused to repair the damages, LeBlanc again employed Muhl to re-lay the lines at a cost of $26,000.00. LeBlanc refused to pay Gulf the balance due upon the paving contract, and Gulf originated this litigation by suing LeBlanc for the balance due. Le-Blanc filed a cross-action against Gulf alleging that the damage to the electrical cables was proximately caused by Gulf’s negligence, thus claiming an offset. Le-Blanc also filed a third party action against Atlas for damages for breach of its subcontract and alternatively alleged that the damages were caused by the negligence on the part of Atlas in constructing the lines. Atlas answered with a general denial and a cross-action against LeBlanc for the amount due and owing upon its subcontract.

The case was tried before a jury. There being no dispute as to the balance due and ■owing upon each of the appellees’ subcontracts, the cause was submitted only upon LeBlanc’s cause of action for damages against appellees Atlas and Gulf. The jury returned a verdict exonerating both Atlas and Gulf of liability for the damages to the electrical cables.

Based upon the jury verdict, the trial court entered a take-nothing judgment against LeBlanc and rendered judgment for Atlas and Gulf for the amounts due and owing them upon their subcontracts. Judgment was also rendered in favor of Muhl Electric.

Prior to entry of the judgment, LeBlanc filed a motion for judgment non obstante veredicto, contending that the evidence showed as a matter of law (1) that Atlas had breached its contract; (2) that Atlas was guilty of negligence proximately causing the damages, and (3) that Gulf was guilty of negligence proximately causing the damages. The trial court overruled the motion, as well as the motion for new trial, and appellant duly perfected this appeal. Appellant has subsequently stated to the court in the brief that appellant did not desire to further prosecute this appeal against Muhl and therefore the appeal insofar as it affects Muhl Electric Ltd. will be dismissed.

In order to properly understand the appellant’s points of error, a review of the record will be necessary. In so doing, we shall follow the familiar rule that the evidence must be viewed in a light most favorable to the parties obtaining the verdict and judgment. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

The record shows that LeBlanc entered into the contract with Eastern on May 13, 1960. Shortly thereafter, LeBlanc entered into subcontracts with appellees Atlas, Gulf and Muhl. In July, 1960, Gulf commenced its work and poured a 13-inch cement airport apron slab and a 6-inch parking slab. At that time a 20-foot unpaved strip was left adjoining the maintenance building so that the pipeline trenches for the plumbing could be dug by the plumbing contractors. Gulf left the job about August 15th; thereafter, Atlas commenced upon the plumbing *90 contract. Under the terms of the subcontract, Atlas had the duty of laying three underground pipelines on the west and north sides of the maintenance building. These lines consisted of a water line, an air line and a three-fourths inch galvanized varsol line. The trench was dug and the lines were laid along the west side of the building running north. At the northwest corner of the building, the lines turned east and ran along the north side of the building. At the northwest corner of the building, the lines crossed over electrical cables which had previously been installed and it therefore became necessary at this point to elevate the plumbing lines approximately one foot. This was accomplished by what is known as a “riser.” An elbow was installed at the bottom and at the top of the riser. After the varsol line had been installed, it was tested under pressure and found to be satisfactory by the architect. After the plumbing lines had been laid, Atlas backfilled the trench except for a distance of 30 feet on each side of the corner of the building, which was left open for the purpose of allowing the gas and sprinkler contractor to lay their lines in the trench. During the four to six weeks’ period in which the trench was left open, there was considerable work activity in the vicinity of the northwest corner of the building by various contractors, i. e., Atlas, LeBlanc, Gulf, the masonry subcontractor, the gas company, and the sprinkler contractor. There was no evidence as to who actually backfilled the ditch at the corner of the building, or when it was done. Gulf returned to the job on November 7, 1960, to complete the paving. At that time the trench had been completely filled; however, Gulf had to clean out a portion of the ditch, inasmuch as it was filled with water and mud, in order to re-make the subgrade in the 20-foot strip previously referred to. The ditch was “mucked out” by Gulf, whose employees used a large piece of heavy equipment known as a backhoe. The removal of the wet dirt and mud from the ditch was done on November 11, 12 and 14, 1960, and was backfilled at that time with cement stabilized sand. Prior to the time Gulf removed the wet dirt and mud from the ditch, there had been heavy rains and the soil over the pipe had settled. At that time, the ditch at the northwest corner of the building had already been backfilled.

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Bluebook (online)
412 S.W.2d 86, 1967 Tex. App. LEXIS 1973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-inc-v-gulf-bitulithic-company-texapp-1967.