Padre Drilling Co. v. Brown Oil Tools, Inc.

498 S.W.2d 732, 1973 Tex. App. LEXIS 2509
CourtCourt of Appeals of Texas
DecidedJuly 18, 1973
DocketNo. 15206
StatusPublished
Cited by1 cases

This text of 498 S.W.2d 732 (Padre Drilling Co. v. Brown Oil Tools, Inc.) 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
Padre Drilling Co. v. Brown Oil Tools, Inc., 498 S.W.2d 732, 1973 Tex. App. LEXIS 2509 (Tex. Ct. App. 1973).

Opinion

BARROW, Chief Justice.

A venue action. Appellant filed suit in the 79th District Court of Brooks County against Dow Chemical Company, ap-pellee Brown Oil Tools, Inc., a Texas Corporation, and appellee Tesoro Petroleum Corporation, a Delaware Corporation, whereby it sought to recover for the loss of its rig and other personalty as the result of a blowout and subsequent fire on a wildcat oil well being drilled on January 20, 1970, in Brooks County. A plea of privilege was filed by Brown to remove the claim against it to Harris County, and Tesoro sought to remove the claim against it to Bexar County. Appellant duly controverted said pleas of privilege and urged that venue lies in Brooks County under Subdivision 9a and Subdivision 23 of Article 1995, Tex.Rev.Civ.Stat.Ann. The trial court, after a non jury hearing, sustained both pleas of privilege, ordered the suit severed, transferred the claim asserted against Brown to Harris County, and transferred the claim against Tesoro to Bexar County.1

Appellant urges four assignments of error on this appeal wherein it asserts that venue was established against each appellee under both Subdivision 9a and Subdivision 23. It thereby urges that the evidence conclusively establishes the venue facts necessary to maintain venue as to both appellees under each of these exceptions to the general venue statute.

It is necessary at the outset to determine the character of appellate review we are required to make in this case. Appellant urges that since appellees did not offer any controverting evidence at the hearing, a presumption will not be indulged to support the order sustaining appellees’ pleas of privilege. In support of such theory, it cites Stephens v. Coppock, 212 S.W.2d 879 (Tex.Civ.App.—Dallas 1948, no writ), and Farley v. Nix, 199 S.W.2d [734]*734670 (Tex.Civ.App.—Galveston 1947, no writ).

A similar theory was rejected by the Supreme Court in the oft-cited case of Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). It was there expressly held that the test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case. If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal. See also: Neuhaus v. Daniels, 430 S.W.2d 906 (Tex.Civ.App.— Amarillo 1968, writ dism’d); Gray v. Gulf Oil Corp., 416 S.W.2d 875 (Tex.Civ.App.—Fort Worth 1967, no writ); Monroe v. Mercer, 414 S.W.2d 756 (Tex.Civ.App.—Houston 1967, writ dism’d) ; Benavides v. Holly Sugar Corp., 302 S.W.2d 946 (Tex.Civ.App.—San Antonio 1957, writ dism’d).

Since there were no findings of fact, we must presume, on this appeal, that the trial court resolved all issuable facts in such a way as to support the sustaining of each appellee’s plea of privilege. Under Subdivision 9a, appellant was required to establish by a preponderance of the evidence that an act or omission occurred in Brooks County which was a proximate cause of appellant’s injuries. 1 McDonald, Texas Civil Practice, Section 4.17.2 (1965 Rev. ed). The statutory venue facts to be established under Subdivision 23 are the elements of a cause of action against said corporate defendants and that said cause of action, or a part thereof, arose in Brooks County. Employers Casualty Co. v. Clark, 491 S.W.2d 661 (Tex.1973); London Properties, Inc. v. Howard-Associated-Page Services, Inc., 474 S.W.2d 580 (Tex.Civ.App.— San Antonio 1971, no writ).

Several companies were involved in the drilling operation at the time of the blowout; but the exact duties of each, as well as their relationship with each other, is not clear in the meager record before us. It is seen that this wildcat well was being drilled by appellant under a written contract with Coastal States. A substantial amount of drill pipe was supplied to Coastal States for use on this well by Arnold Pipe Rental Company, which was merged with Tesoro in July, 1970.2 At the time of the blowout, the well had reached a depth of 10,462 feet. The well was causing difficulty in that it was kicking mud, and the mud had gas mixed with it. Brown supplied specialized tools, as well as supervisory employees, which were used in trying to control the abnormal gas pressure. Dow Chemical supplied cement and drilling mud, together with supervisory employees.

There is no direct evidence of the cause of the blowout of the well, or of the events occurring on the well site immediately before or after the incident. A driller for appellant was present at such time, but he did not testify. Mr. Poche, vice-president of appellant, went to the well site about 10 :00 a. m. on the morning after the blowout and fire. He testified that he picked up four broken pieces of drill pipe which were scattered about the area. These pieces were shipped to Frank Weaver and Associates in Houston. Mr. Weaver, a metallurgist who operates a scientific laboratory involved in failure analysis of metals, testified that his tests demonstrated that the four pieces of drill pipe were below minimum safety specifications of the American Petroleum Institute. He expressed the opinion that the defective pipe was one of the causes of the blowout.

Mr. Billings, president of appellant, was not on the well site at the time of the blowout. However, he testified that one of the causes of the incident was that Brown had placed the cement plug in the wrong place. He based his opinion on a reading [735]*735of Brown’s log which described the operation performed by Brown.

The only other evidence offered at the hearing on the pleas of privilege was certain answers to interrogatories propounded to Padre, Brown and Tesoro. The relevant evidence which was so offered has been included in the above résumé. Appellant urges that this record establishes that venue is established against Tesoro because Arnold supplied defective pipe, and against Brown because of the faulty cement work.

Assuming, without deciding, that Tesoro is responsible for the negligence of Arnold by reason of the merger agreement, the trial court’s implied finding of no negligence proximately causing the blowout is supported by evidence of probative force. Although there is evidence that Arnold furnished drill pipe of the size in question to Coastal States for use on this well, the evidence does not conclusively establish that the pipe examined by Mr. Weaver belonged to Arnold. There were no identifying marks on any of this standard size pipe. Clearly, the testimony of Mr. Weaver that the pipe was defective is simply an opinion by this expert witness, which ordinarily does not establish the fact as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex.1970).

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