Appeal from District Court of Harris County
For Appellant: Larry M. Lesh - Dallas, TX
Jess Hall, Jr. - Houston, TX
For Appellee: Blake Tartt, Richard N. Carrell - Houston, TX
Defendant, Gorbett Bros., appeals from a judgment awarding $101,080.83 to Anderson, Clayton & Co. (ACCO), as damages resulting from the collapse of a soybean tank fabricated and erected by Gorbett Bros. The tank was built in Osceola, Arkansas, pursuant to a purchase order contract, and ACCO paid Gorbett Bros. $34,590 for it. Several years earlier, Gorbett had submitted detailed blueprints for the fabrication and erection of similar surge tanks which it later built for ACCO under a 1966 agreement at Vicksburg, Mississippi. Then, when ACCO decided to build the tank in question at Osceola, it enclosed with its invitations to bid an autopositive print of one of the drawings Gorbett had made for the Vicksburg job. ACCO labeled it ACCO SK 111-M1626.
After a non-jury trial, the judge made findings of fact (which we have condensed) concerning liability: 1) Gorbett Bros. entered in a contract with ACCO whereby Gorbett Bros. sold, designed, fabricated and erected one 40 foot by 54 foot, 6-inch soybean holding surge tank with cone bottom (hereinafter referred to as the "tank") at ACCO's facility near Osceola, Arkansas; 2) Gorbett Bros. is a wholly owned subsidiary of Trinity Industries, Inc.; 3) ACCO paid Gorbett Bros. the full contract price for the design, fabrication and erection of the tank; 4) the tank collapsed upon its initial use April 8, 1972, through no fault of ACCO; 5) Gorbett Bros. was, at all pertinent times, engaged in the business of designing, selling, fabricating and erecting tanks such as the tank which collapsed; 6) Gorbett Bros., at all pertinent times, represented themselves to ACCO to be engineers, designers, fabricators and erectors of tanks such as the one contracted for by ACCO; 7) ACCO reasonably relied upon the representations of Gorbett Bros. in entering into the contract and in accepting and paying for the tank; 8) Gorbett Bros. knew that the tank was to be used to hold large quantities of soybeans at all pertinent times; 8A) the tank furnished by Gorbett Bros. to ACCO failed to satisfy the purpose for which Gorbett Bros. knew it to be intended; 8B) the tank furnished ACCO by Gorbett Bros. was defective at the time it was released to ACCO by Gorbett Bros.; 9) the defects in the tank at that time were such as to render the tank unreasonably dangerous; 10) such defects were a producing cause of the damages suffered by ACCO; 11) Gorbett Bros. was negligent in the design of the tank; 11A) such negligence was a proximate cause of the damages suffered by ACCO; 12) Gorbett Bros. was negligent in the erection of the tank; 12A) such negligence was a proximate cause of the damages suffered by ACCO; 13) Gorbett Bros. was negligent in the fabrication of the tank; 13A) such negligence was a proximate cause of the damages suffered by ACCO; 14) Gorbett Bros. was on notice of the defects in the tank; 15) Gorbett Bros. was negligent in failing to notify ACCO of the defects; 15A) such negligence was a proximate cause of the damages suffered by ACCO; 16) Gorbett Bros. knew that ACCO was relying upon the skill and judgment of Gorbett Bros. as a seller, designer, fabricator and erector of tanks, engaged in the business of selling, designing, fabricating and erecting tanks; 17) Gorbett Bros. impliedly warranted the fitness of the tank for the purpose for which it was to be used; 17A) Gorbett Bros. breached its implied warranty of fitness for a particular purpose; 17B) such breach was a proximate cause of the damages suffered by ACCO; 18) Gorbett Bros. impliedly warranted the merchantability of the tank; 18A) Gorbett Bros. breached that implied warranty; 18B) such breach was a proximate cause of the damages suffered by ACCO.
After considering the request of defendant Gorbett Bros. for additional findings, the trial judge made this response:
1. The agreement between Gorbett Bros., Inc., and ACCO relating to the tank at Osceola, was in the form of ACCO Purchase Order ID13731 dated April 5, 1971, providing, in language prepared by ACCO for the purchase of one:
"SOYBEAN HOLDING SURGE TANK 40minute-0second dia. X 54minute-6second shell, 27-1/2 Degree conical roof, and 31 degree cone bottom, with two 24second manholes, fabricated in strict accordance with attached Drawing Sk111-M1626...."
Said agreement provided further:
"None of the terms and provisions contained in this Purchase Order may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Buyer and delivered by Buyer to Seller, and each shipment received by Buyer from Seller shall be deemed to be only upon the terms and conditions contained in this Purchase Order except as they may be thus added to, modified, superseded or otherwise altered, and notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice, or other form of Seller and notwithstanding Buyer's act of accepting or paying for any shipment or similar act of Buyer."
2. Drawing SK111-M1626 attached to and made a part of ACCO Purchase Order ID13731 was an autopositive of a Gorbett Bros. design used by ACCO to indicate the desired dimensions of the tank for bidding purposes only. ACCO did not adopt the drawing as to sufficiency or fitness of design.
3. In the course of performing its obligations to design, fabricate and erect the tank under the agreement, Gorbett Bros. prepared and submitted to ACCO the requisite number of sets of manufacturer's drawings of the tank. In accordance with the terms of said agreement, said manufacturer's drawings incorporated the dimensions contained in Drawing SK111-M1626.
4 & 5. Defendant's Requests 4 and 5 are rejected. The Court finds that ACCO relied upon Gorbett Bros. as to the sufficiency of design and Gorbett knew or should have known, based on past dealings, usage and custom in the industry and the circumstances surrounding the purchase of the tank, that ACCO was relying upon Gorbett in this regard.
6. ACCO had its own Engineering Department, staffed by at least two Registered Professional Engineers who were involved in the preparation of the autopositive of the Gorbett design labeled Drawing SK111-M1626 and ACCO Purchase Order ID13731; however, ACCO did not undertake to design the tank nor in any way relieve Gorbett of such responsibility.
7. Gorbett Bros.' request for finding no. 7 is rejected as being in direct conflict with findings already made by the Court in accordance with the evidence.
8. Gorbett Bros.' request for finding of fact no. 8 is rejected as being in direct conflict with findings already made by the Court in accordance with the evidence.
9. In September of 1971, Gorbett Bros. Steel Company, Inc., completed the fabrication of the said soybean holding surge tank in Osceola and released the tank to ACCO, which paid for the same.
10. Gorbett Bros.' request for finding no. 10 is rejected as being in direct conflict with findings already made by the Court under the evidence.
Gorbett's first point of error is that the trial court erred in awarding judgment to ACCO because the undisputed evidence showed that ACCO's acts caused the vessel to collapse. Gorbett's second point of error is that the trial court erred in using evidence of the 1966 agreement concerning the Vicksburg vessel to add inconsistent and contradictory terms to the 1971 agreement concerning the Osceola vessel.
In its next 54 points of error Gorbett challenges the findings of fact bearing the following numbers by no evidence and insufficient evidence points: 1, 3, 4, 7, 11, 11A, 12, 12A, 13, 13A, 14, 15, 15A, 16, 17, 17A, 17B, 18, 18A, 18B and additional findings 2, 4 and 5, and 6. Gorbett also contends in these points that findings 5, 6, 7, 8, and 9 are irrelevant and immaterial.
In reviewing "no evidence" points we examine the evidence in its most favorable light, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to them. In reviewing factual sufficiency points, we consider all the evidence.
Gorbett says that on the Vicksburg job in 1966, it was requested to and did submit to ACCO drawings of a tank with the cone resting on the foundation, and they were approved with a notation that the bottom of the cone be raised five feet, six inches above the foundation by raising the skirt that much. That on the Osceola job, ACCO selected the design of the vessels constructed in Vicksburg, placed ACCO's name and identification number, SK111-M1626, on the drawing and distributed it to various contractors to bid on a tank fabricated "in strict accordance with Drawing SK111-M1626." Gorbett alleges that the contract price of $34,590.00 paid by ACCO to Gorbett was strictly for fabricating and did not include payment for design of the vessel. Gorbett argues that the collapse of the vessel in Osceola "resulted from insufficiencies attributable to Anderson, Clayton Drawing No. SK111-M1626 (the insufficient thickness of the skirt and insufficient design of the cone connection to the skirt) and/or modifications thereof made by (cutting the conveyor opening without any reinforcement whatsoever) or at the instruction of (raising the door) Anderson, Clayton."
As to the drawing sent to Gorbett, ACCO says it was merely to indicate the overall dimensions they required for the tank, the drawing was not sufficient to be used to make and erect a tank, and Gorbett Bros. designed, fabricated, and erected the tank at Osceola. There is sufficient evidence to support ACCO's position. Mr. Robert W. Greaser, chief engineer for ACCO, testified that in the last 25 years ACCO had done several million dollars worth of business with Gorbett, and ACCO had never sent a designed tank to Gorbett for construction. Rather, the practice was for ACCO to send an "inquiry" to describe the need as to function and physical dimensions. Mr. Cleon Gorbett, a former owner of Gorbett Bros. and presently an advisor, testified about the tank that his company designed and erected at Vicksburg. Gorbett Bros. engages in the business of designing and/or erecting tanks. People would give Gorbett sketches or drawings and show the dimensions they wanted and site location. "We put it in engineering, and it came out of there designed for erection." Mr. Gorbett testified that when he dealt with ACCO on the Vicksburg tanks he did not expect ...