Bonner v. Texas Co.

• Decision Date: 05 April 1937
• Docket Number: No. 8251.,8251.
• Citation: 89 F.2d 291
• Parties: BONNER v. TEXAS CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 291 (1937)

BONNER v. TEXAS CO. et al.

No. 8251.

Circuit Court of Appeals, Fifth Circuit.

April 5, 1937.

M. G. Adams, of Beaumont, Tex., for appellant.

Wm. K. Hall, J. Russell Mount, and John C. Jackson, all of Houston, Tex., for appellees.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

The plaintiff-appellant sued the Texas Company and its subsidiary, Texaco Can Company, both corporations of Delaware, for the negligent homicide of her husband, an employee of the latter. The District Court rejected as evidence a statement of the husband as to how he was injured, and directed the verdict for the defendants. These rulings are for review.

The deceased, Bonner, died because of burns from an explosion while he was at work in a room where machines in his charge were making a fuel mixture of air and natural gas and of air and vapor of gasoline. Compensation was paid under the Workmen's Compensation Law, but the Texas Constitution, art. 16, ? 26, gives an action for exemplary damages against "every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect"; and the Workmen's Compensation Law, Rev.Civ. Stats. art. 8306, ? 5, preserves this action notwithstanding compensation may be paid. The employer Texaco Can Company was therefore sued for exemplary damages for the homicide, the gross negligence alleged consisting in operating the mixing machines after they were old and defective and leaking gas, and while overloaded, and in having in the room electric motors which were uncovered and sometimes emitted sparks, and in having test flames burning behind a glass screen, but not air or gas tight, from which explosions might happen and had happened to the employer's knowledge, and that no sufficient ventilation was provided to carry off escaping gas. In accordance with Texas practice, the Texas Company, which delivered the natural gas to a machine from its plant two miles distant through its own pipe line, was joined and alleged to be responsible for the negligence of Texaco Can Company, its subsidiary, and independently negligent in that it suddenly and unnecessarily and without warning blew gas or oil or both through its pipe to the machine at very high pressure, thereby breaking and cracking the machine and causing gas to escape from it. Res ipsa loquitur was pleaded as excusing the want of a more exact statement of the cause and manner of the explosion. Besides denial of negligence, the Texaco Can Company pleaded contributory negligence of Bonner and assumption of risk, and the Texas Company pleaded contributory negligence. On issues thus defined the evidence for the plaintiff showed such a condition of the plant and its operation as was alleged, including the occasional "blowing out" of the two-mile gas main by forcing high-pressure gas through it to free it from accumulations of oil; all of which had been going on for years and was well known to Bonner, who was in charge of the mixing room as foreman. What happened at the time of the explosion could not be precisely shown, as only he and his immediate superior were present and both died in consequence of it. Nothing was found in the condition of the room and the machines to show the cause or manner of the explosion. The machines and pipes remained, so far as appeared, unbroken.

To rebut the inference of assumption of risk, and to show that a high pressure was suddenly put by the Texas Company on its gas main, the statement of Bonner to his wife and a lady friend was offered. It was a consecutive narrative, covering in the record more than a printed page, of trouble that the machines had been giving all day, of how Bonner had sought to fix them and had been unable, and had sent for his superior to come, and had asked him to shut the plant down, but the request was refused and he was told to stay there and do the best he could, and that at the moment before the explosion he was telling his superior that they were then shooting oil through the line from the Texas Company's refinery. The preliminary proof to show that this statement was not mere hearsay but res gest? was that the explosion occurred about 4:10 p. m., that Bonner was taken to the first-aid room at the plant and given attention, and was then taken by automobile six or seven miles to a hospital and his wounds dressed in the emergency room; and that he was then put to bed in a ward. His wife, the plaintiff, had come about three miles to the hospital, and in the emergency room she broke down and her husband took her hand and told her not to cry; that he was going to be all right. Afterwards in the ward she asked him how it all happened, the other lady being present, and his statement followed. This was about forty-five minutes after the explosion. The wife then left to see about getting a private room, and in her absence he said to the other lady not to repeat it to his wife, but "I am badly burned. I am afraid they have gotten me this time," and in reply to a remark from her, "It took a long time, but they got me." He was conscious and rational, though apparently suffering notwithstanding hypodermic injections. It does not appear that he was ever unconscious, nor what his previous conversations with others were, if any.

To justify admission of Bonner's statement, the doctrine of dying declarations is faintly urged, but that exception to the rule against hearsay is made only in favor of criminal justice and has not been much applied in civil cases. Nor does it appeared that the declarant was in fact in articulo mortis. That this important witness has died does not render his declarations admissible, since they were not against his interest. The general rule that statements by a person not under oath and not subject to cross-examination, although he be since deceased, are not to be received in evidence, we recently examined along with the established exception touching res gest? in Halleck v. Hartford Accident & Indemnity Co. (C.C.A.) 75 F.(2d) 800, a case from Texas, and what was there said need not be repeated. It does not well appear here that the transaction of the explosion was still on foot, speaking through this man in exclamatory or at least spontaneous words. Though suffering, the declarant was far in time and space from the explosion,...