Opinion
No. 09-88-036 CV.
April 13, 1989. Rehearing Denied May 3, 1989.
Appeal from the 136th District Court, Jefferson County, Jack R. King, J.
Douglas W. Poole, Otto Hewitt, III, McLeod, Alexander, Powel Apffel, P.C., for appellant.
Charles W. Hurd, III, Ben Taylor, Fulbright Jaworski, for appellee.
OPINIONPayne Keller contracted to do maintenance work at P.P.G.'s plant. Daniel R. Leitten was a foreman with Payne Keller. P.P.G. made phosgene, a lethal chemical. In June, 1984, while working on a pipe near the phosgene line, Leitten bumped the valve on the phosgene line, the liquid sprayed out, some of it entered Leitten's nose, resulting in his death. Thereafter, Leitten's parents, along with the deceased's common-law wife, filed suit for negligence. P.P.G. sued Payne Keller in a third party action based on indemnity language in the P.P.G./Payne Keller contract. Trial was to a jury which found P.P.G. negligent and Leitten contributorily negligent (but not a proximate cause). The trial court entered judgment on the verdict and denied P.P.G. indemnity from Payne Keller. Appeal was taken by P.P.G.
The first point of error is dispositive of this appeal. It is: "The trial court erred and abused its discretion as a matter of law in denying PPG contractual indemnity from Payne Keller."
The indemnity agreement required Payne Keller to indemnify P.P.G.:
". . . from and against . . . Any claim . . . cause of action, loss . . . or liability, whatsoever, on account of injury to or death of persons (including the employees of . . . Contractor . . .) ) . . . arising out of . . . the acts or omissions . . . of Contractor or its . . . employees . . . in the performance of the Work . . . irrespective of whether [P.P.G.] was concurrently negligent . . . but excepting where the injury or death . . . was caused by the sole negligence . . . of [P.P.G.]."
The trial court, in refusing to award P.P.G. indemnity from Payne Keller, stated:
"There being no finding that there was concurrent negligence that was a proximate cause of the occurrence, it is further ordered . . . that P.P.G. take nothing by reason of its third party action against Payne Keller." (emphasis added)
In Lone Star Ind. v. Atchison, Topeka Santa Fe Ry Co., 666 S.W.2d 376, 379 (Tex.Civ.App. — Beaumont 1984, writ ref'd n.r.e.), a unanimous court held "that a finding of proximate cause is not a prerequisite to liability for indemnity." We, therefore, sustain this point of error. Since Payne Keller have taken no appeal and have not adopted the remainder of P.P.G.'s points of error, we reverse the judgment of the trial court and render judgment that P.P.G. is entitled to indemnity by Payne Keller for the amount of the judgment in favor of the plaintiffs below.
Reversed and Rendered as reformed.