Gantt v. Mobil Chemical Company

• Decision Date: 14 July 1972
• Docket Number: No. 71-2451.,71-2451.
• Citation: 463 F.2d 691
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Carl A. GANTT, Plaintiff-Appellee, v. MOBIL CHEMICAL COMPANY, Defendant-Third Party Plaintiff-Appellee-Appellant, v. STEARNS-ROGER CORPORATION, Third Party Defendant-Appellant.

463 F.2d 691 (1972)

Carl A. GANTT, Plaintiff-Appellee, v. MOBIL CHEMICAL COMPANY, Defendant-Third Party Plaintiff-Appellee-Appellant, v. STEARNS-ROGER CORPORATION, Third Party Defendant-Appellant.

No. 71-2451.

United States Court of Appeals, Fifth Circuit.

June 21, 1972.

Rehearing Denied July 14, 1972.

Robert E. Barnes, Beaumont, Tex., for Stearns-Roger Corp. Arthur L. Schechter, Downman, Jones & Schechter, Houston, Tex., for plaintiff-appellee Carl A. Gantt.

Cleve Bachman, Beaumont, Tex., Maurice Amidei, Mobil Chemical Co., Dallas, Tex., Tom Normand, Orgain, Bell & Tucker, Beaumont, Tex., for Mobil Chemical Co.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

During the night shift of May 25, 1969, Carl A. Gantt (Gantt), an employee of the Stearns-Roger Corporation (Stearns), fell from a ladder and suffered personal injuries. Stearns was performing contract maintenance work at the Beaumont, Texas, plant of the Mobil Chemical Company (Mobil). Gantt brought suit against Mobil for damages. Relying upon an indemnification clause in its contract with Stearns, Mobil brought a third-party action against Stearns to recover any amount that it might be required to pay to Gantt. Insurance Company of North America (INA), the workmen's compensation carrier for Stearns, intervened to recover benefits paid to Gantt under the Texas Workmen's Compensation Act.

The jury awarded Gantt damages against Mobil in the amount of $40,000.00. It found for Stearns on Mobil's claim for indemnification under the basic contract. The district court entered judgment for Gantt against Mobil in the sum of $41,147.00 with legal interest and court costs; it entered judgment notwithstanding the verdict in favor of Mobil with respect to its indemnification claim against Stearns in the amount recovered by Gantt, and it awarded $5,000.00 as attorney's fees to Mobil against Stearns. Mobil and Stearns appeal from the entry of judgment in favor of Gantt, and Stearns appeals from the district court's indemnity award against it in favor of Mobil. INA's appeal from the district court's failure to adjudicate its claim for disbursed workmen's compensation benefits has been resolved by means of a stipulation entered into following the oral argument of this case. For the reasons given below, we affirm the judgment in favor of Gantt, reverse the district court's entry of judgment n. o. v. in favor of Mobil against Stearns, and remand with directions to reinstate the jury's verdict.

GANTT'S INJURY

At trial, Gantt and Mobil advanced sharply differing testimony as to how the fall from the ladder occurred. Summaries of each version will help to clarify the appellate contentions of the parties.

According to Gantt, he and a fellow worker, James Eaves, Sr., were told by their foreman, Ralph Franklin, to crack an ammonia line and take out a valve. As they loosened the nuts on the valve flange, the gasket separated slightly and ammonia started coming out. Gantt and Eaves, Sr., retightened the flange and reported the situation to their foreman. When they first reported to Franklin he suggested that they hold their breaths, take a bolt out, get some air and continue the job by repeating that procedure. They returned to the job to follow Franklin's suggestions, but the ammonia continued to escape as they backed off a nut or removed a bolt. Gantt, as a result of the inhalation of ammonia fumes, became dizzy and groggy. After the valve was removed, Eaves, Sr., wanted to smoke, so they started toward the smoke shack. Gantt had no recollection of the events after this until he awakened in a hospital with several injuries.

Gantt filled this gap through the testimony of James Eaves, Jr., a fellow Stearns employee. Eaves, Jr. testified that while he was working about fifteen feet away from Gantt, it became necessary for him (Eaves, Jr.) to procure a ladder to get up about fifteen feet in the air to tighten some flanges on a pipe. Eaves, Jr.'s partner departed to get a drink of water. At this point Gantt came by, inquired as to what was going on, and, upon being told, volunteered to "go up and get it". Gantt was given two wrenches by Eaves, Jr. and upon reaching the top of the ladder, teetered and fell. Eaves, Sr. corroborated Gantt's version of the instructions received from Franklin.

Mobil's version of the events leading up to Gantt's accident was based primarily upon the testimony of the Stearns foreman, Franklin. He recalled that Gantt and a fellow worker were assigned to the duty of tightening a valve flange on a water line which was about to be tested with pressure. The valve was about ten feet overhead. The men procured a ladder and Gantt ascended it with two wrenches. Franklin left the area momentarily and upon returning he saw one of the wrenches slip and Gantt fall over the front of the ladder, hitting his head on the floor. Franklin denied that Gantt was assigned to any job that night involving the cracking or breaking of a line containing ammonia or removing a valve from any line in the area described by Gantt. The foreman also asserted that he never would have let his men continue to work in an area where ammonia was escaping from a line. In sum, the entire defense was based on Franklin's testimony that the earlier incident described by Gantt and corroborated by Eaves, Sr. simply never took place.

THE TRIAL THEORIES OF THE PARTIES

Gantt charged that Mobil was negligent in one or more of the following particulars, rendering it liable for his injuries proximately resulting from its breach of duty:

1. Mobil failed to warn Gantt of the presence of noxious fumes in the area in which he was working.

2. Mobil failed to provide Gantt with a reasonably safe place in which to work.

3. Mobil allowed the fumes to accumulate at a place and time when Mobil knew or in the exercise of ordinary care should have known that said presence constituted a peril to those working the area, including Gantt.

4. Mobil failed to properly drain ammonia from the pipes in question when Mobil knew that subcontractors and employees of subcontractors such as Gantt would be attempting to remove and work around these pipes and would be exposed to the dangerous fumes, thereby sustaining injury such as that sustained by Gantt.

5. Mobil failed to properly inspect the pipes in question to ascertain that they were drained of all the noxious ammonia though Mobil knew or in the exercise of ordinary care should have known that this constituted a peril to those working in the area.

Mobil answered by denying the allegations of negligence and by interposing several defenses of an affirmative nature:

1. Gantt was guilty of contributory negligence.

2. Gantt's injuries were sustained as the result of an unavoidable accident.

3. Gantt's accident and injuries, if any, were sustained not as a result of the condition of the premises or the place of work, but as a result of the manner in which the job was being performed by Gantt and his fellow employees of Stearns.

4. Gantt assumed the risk of all dangers involved in the job he was performing.

5. Any dangers complained of by Gantt were open and obvious.

6. Franklin's knowledge of the escaping ammonia fumes constituted a complete defense to the liability of Mobil.

As noted earlier, Mobil filed¹ a third-party complaint against Stearns for any amount recovered by Gantt for indemnification. This claim was based upon Section 12.1 of the contract between the parties dated January 18, 1968, providing:

"Contractor" (Stearns) "shall indemnify and hold Company" (Mobil) "harmless against all losses, expenses, and claims (including those of the parties, their agents and employees) for death, personal injury or property damage arising out of the work performed hereunder whether by Contractor or any subcontractor or other respective employees, agents, or invitees provided, however, Contractor shall not be liable hereunder for loss of damage to Company\'s property, in excess of the limits of the insurance coverage Contractor is herein required to provide, caused by the perils of fire, lightning, explosion, or other extended coverage, perils regardless by whom so caused, and Company shall obtain for Contractor\'s benefit a waiver of subrogation rights consistent with this limitation under Company\'s insurance policies, if any, covering said property."

Mobil maintained that the above-quoted contractual provision required indemnification from Stearns for any amounts Mobil was ordered to pay to Gantt as damages for personal injuries suffered on Mobil's premises. Stearns denied liability for indemnity urging that Mobil's own negligence in failing to bleed the ammonia line was the sole proximate cause of Gantt's injuries and that Section 12.1 of the contract did not shift responsibility for the results of Mobil's negligence to Stearns.

THE JURY INSTRUCTIONS

Since the court's charges are the basis for a number of claimed errors on appeal, we find it convenient to set forth the critical instructions at this point.

The trial judge charged the jury as to a land-owner's duty of care to employees of independent contractors in the following terms:

"You are instructed that the Defendant, Mobil Chemical Company, has a legal duty to exercise ordinary care in keeping its premises in a reasonable safe condition for employees of independent contractors or sub-contractors and its employees, such as the Plaintiff. It has a duty only with respect to such conditions which are in the nature of hidden dangers. However, in that they are not known to such independent contractors or independent contractors employees and would not be obvious to them in the exercise of ordinary care. You are instructed that as to any conditions upon the premises, which were open and obvious, the Defendant was under no duty with respect to employees of independent contractors such as Carl A. Gantt, who assumes all ordinary risks — attendant upon the use of the

...