American Oil Co. v. Fisher, A14-82-298CV

• Citation: 659 S.W.2d 80
• Decision Date: 04 August 1983
• Docket Number: No. A14-82-298CV,A14-82-298CV
• Parties: AMERICAN OIL COMPANY, et al., Appellants, v. George E. FISHER, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 80

659 S.W.2d 80

AMERICAN OIL COMPANY, et al., Appellants, v. George E. FISHER, Appellee.

No. A14-82-298CV.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 4, 1983.

Otto D. Hewitt, III, Ervin A. Apffel, Jr., McLeod, Alexander, Powel & Apffel, Galveston, for appellants.

Gordon E. Davenport, Jr., Brown, Todd, Hagood & Davenport, Alvin, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

ELLIS, Justice.

American Oil Company appeals from a judgment entered on the jury's verdict in an action for personal injuries sustained by George E. Fisher, when he inhaled sulphuric acid fumes released on the company's premises. We affirm.

On August 8, 1978, George Fisher was working as a heavy equipment operator for Steel Tank, a contractor working at the Amoco plant. On this date, C.L. Lee, an operator in Alkylization Unit No. 2, was in charge of monitoring a pump which was attached to a tank containing acid and hydrocarbons. Lee left the pump running while he answered a personal phone call in the control room of the unit, allowing hydrocarbons to be drawn off with the acid in the tank, resulting in a release of sulfuric acid vapors into the atmosphere. Fisher inhaled these fumes for approximately thirty-five to forty minutes, resulting in his injuries. The case was tried to a jury, judgment was entered against Amoco, and Fisher recovered $625,825. Appellant filed a motion for new trial and for remittitur. The trial court suggested, and appellee acquiesced to, a remittitur of $250,000. American Oil Company appeals this judgment; appellee Fisher asserts two cross-points.

In points of error one and two, appellant contends there was no evidence or, in the alternative, insufficient evidence to support the jury's answer to Special Issue No. 2. Special Issue No. 2 inquired of the jury:

Do you find from a preponderance of the evidence that at the time of the occurrence in question C.R. Lee was engaged in the service of Amoco Oil Company and in furtherance of its business?

The jury answered yes.

When addressing a no evidence point of error, this Court is required to consider only the evidence and reasonable inferences therefrom which supports the finding, and then in its most favorable light. Schaefer v. Texas Employers' Insurance Association, 612 S.W.2d 199 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In considering an insufficiency point, it is the Court's duty to consider and weigh all the evidence in the record to determine if it supports the judgment. Burnett v. Motyka, 610 S.W.2d 735 (Tex.1980); In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

It is a longstanding rule in Texas that, in order to hold a master liable for the acts of his servant, the act must have been committed (1) within the scope of the general authority of the servant; (2) in furtherance of the master's business; and (3) for the accomplishment of the object for which the servant is employed. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.1971). It is undisputed that C.R. Lee was working the 4:00 p.m. to 12:00 a.m. shift on August 8, 1978, and his job that evening was to monitor the tanks from which acid was being pumped, and to pump the acid down to the desired level, without pumping out the hydrocarbons. Lee testified that he had switched the pump on that evening, but failed to turn off the pump when it reached the designated acid level. At that time, he was in the control room of the alkylization unit talking on the telephone to his girlfriend.

We find the evidence sufficient to support the jury's response to Special Issue No. 2. Employee Lee was on the premises of his employer, Amoco, was working his assigned shift, and was working under the supervision of the process shift foreman on duty, however relaxed such supervision may have been. Lee was entrusted with the job of operating a pump as instructed, in furtherance of his employer's business. His negligence in failing to properly monitor the acid level in Amoco's tank, and shut off the pump when required clearly occurred within the course and scope of his employment. We overrule points of error one and two.

In point of error three, appellant argues the trial court erred in refusing to submit its issue on "deviation" from the course and scope of employment as Special Issue No. 2, in lieu of the special issue actually submitted. We find the trial court fairly submitted the controlling issue raised by the pleadings and evidence. The case will not be reversed because of the trial court's failure to submit other and various phases or different shades of the same issue. Prudential Insurance Company of America v. Tate, 162 Tex. 369, 347 S.W.2d 556 (1961); City of Amarillo v. Reid, 510 S.W.2d 624 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.); American Transfer and Storage Company v. Reichley, 560 S.W.2d 196 (Tex.Civ.App.--Amarillo 1977, writ ref'd n.r.e.).

In point of error four, appellant contends the trial court erred in excluding from evidence plaintiff-appellee's petition in a prior lawsuit. Appellant read into the record for impeachment purposes deposition testimony of George Fisher, taken on April 17, 1978, in connection with a lawsuit appellee had previously filed against Marathon Oil Company. This testimony was admitted without objection. Appellant then tried to introduce the original petition from appellee's suit against Marathon, which appellant objected to as being immaterial, irrelevant, and not a judicial admission. The...