Eddleman v. Scalco, 7358

• Decision Date: 29 June 1972
• Docket Number: No. 7358,7358
• Citation: 484 S.W.2d 122
• Parties: James L. EDDLEMAN et al., Appellants, v. Stephen SCALCO et al., Appellees.
• Court: Texas Court of Appeals

Page 122

484 S.W.2d 122

James L. EDDLEMAN et al., Appellants, v. Stephen SCALCO et al., Appellees.

No. 7358.

Court of Civil Appeals of Texas Beaumont.

June 29, 1972.

Rehearing Denied Aug. 31, 1972.

Waldman, Smallwood, Johnson & Rafes, Beaumont, W. James Kronzer, Houston, for appellants.

Rienstra, Rienstra & Dowell, Beaumont, for appellees.

DIES, Chief Justice.

For some years, Victor Scalco, a Port Arthur produce dealer, had ripened bananas with acetylene gas. This was accomplished by placing boxes of unripened bananas in a closed refrigerator cooler and mixing calcium carbide with water which then gave off the acetylene gas. On August 3, 1967, Scalco, his son, and Alfred Alexander placed seventy-five to one hundred boxes of unripened bananas in a cooler and then mixed the calcium carbide with water and closed the heavy door of the cooler. At approximately 1:30 p.m., about one minute after closing the door, an explosion occurred in the cooler which killed Scalco and Estella Loretta Eddleman and injured Alfred Alexander and Charles Ray Dixon.

A consolidated suit against Stephen Scalco, d/b/a Scalco Produce, Inc., Union Carbide Company and Robert Diamond was filed for injuries on behalf of Alfred Alexander, a minor, and Charles Ray Dixon, a minor; and by the parents of Estella Loretta Eddleman for wrongful death. Plaintiffs alleged: That the calcium carbide chemical was manufactured by defendant, Union Carbide, and sold to Victor Scalco by defendant, hardware dealer Robert Diamond. That plaintiffs Alexander and Dixon were employed by Stephen Scalco, brother of the deceased, Victor Scalco, who was likewise engaged in the produce business on the same premises. It was alleged that while defendant, Scalco, was subject to the Workmen's Compensation Law of Texas, he was not a subscriber.

In the trial of the case, defendant Diamond was dismissed. Various allegations of negligence were asserted against the defendants. For the purpose of this appeal, we need only consider those allegations against Union Carbide. Union Carbide was accused, among other allegations, of failing to adequately warn of the potential danger caused by the mixing of calcium carbide and water; in failing to warn that acetylene gas is formed by mixing calcium carbide with water; and in failing to adequately warn that 'improper mixing of calcium carbide with water would be explosive.'

Trial was had to a jury which found: That the explosion was proximately caused by acetylene which was generated by the mixing of water and calcium carbide in the cooler. That the chemical was manufactured by Union Carbide. That Victor Scalco continued to ripen bananas in this manner after having been warned against it which was the sole cause of the accident as was his act in mixing calcium carbide with water in a closed space. That the explosion was not an unavoidable accident. They failed to find that before the accident Victor Scalco 'failed to give a proper warning that he was going to mix calcium carbide and water.'

The following issue and its answer were made:

'If you have answered Special Issue No. 3 'Yes' (i.e., that the calcium carbide was manufactured by Union Carbide Company), then answer the following Special Issue.

'SPECIAL ISSUE NO. 4

'Do you find from a preponderance of the evidence that the container of such calcium carbide used on the occurrence in question warned of the danger of explosion from mixing calcium carbide with water?

'Answer 'Yes' or 'No'

'Answer No'

Following the jury verdict, the trial court entered judgment that plaintiffs 'do have and recover nothing of and from the Defendant, Union Carbide Corporation' from which plaintiffs have perfected this appeal. The parties will be referred to as they were below.

The only error assigned is the refusal of the court to submit issues inquiring if Union Carbide Company failed to warn of the danger of explosion from mixing calcium carbide and water, whether this constituted negligence, and whether such negligence was a proximate cause of the explosion.

The evidence revealed that the container of the chemical had the following warning on it:

'WARNING--KEEP DRY--FLAMMABLE GAS FORMS IF CONTENTS BECOME WET--HARMFUL IF SWALLOWED--KEEP OUT OF REACH OF CHILDREN. 100 POUNDS.'

Defendant contends that the court was correct in refusing to submit the requested issues because this is merely a 'shade or phase' of Special Issue No. 4 (set out above) and not supported by pleadings.

Rule 279, Texas Rules of Civil Procedure excuses the trial court's failure to submit requested issues only '(w)here the court has (already) fairly submitted the controlling issues raised by such pleading and the evidence.' Issue No. 4 did not submit plaintiffs' theory of failure to warn of explosion for two reasons: First, the burden of proof is incorrectly placed so that the jury finding amounts only to its failure to find that the container warned of the danger of explosion from mixing calcium carbide with water. And secondly, no issues of negligence or proximate cause were submitted. It is only fair to note that defendant's attorney pointed these out in his objections to the charge. We think the pleadings as set forth earlier herein were adequate to raise the issues.

The more serious question is whether this theory was raised by the evidence. Defendant argues that the warning on the container concerning flammability is the same as explosiveness and that plaintiffs' own evidence shows that an explosion is simply an accelerated flame.

It is only those controlling issues made by the evidence which the court must submit. Rule 279; Gilbert v. Haigler, 363 S.W.2d 337, 339 (Tex.Civ.App., Houston, 1962, error ref. n.r.e.); Wilkinson v. Lindsey, 321 S.W.2d 158, 162 (Tex.Civ.App., Amarillo, 1959, no writ); Goldman v. Campbell,249 S.W.2d 633, 635 (Tex.Civ.App., Fort Worth, 1952, error ref. n.r.e.); Wichita Transit Co. v. Sanders, 214 S.W.2d 810, 813 (Tex.Civ.App., Fort Worth, 1948, no writ); Chesshir v. Nall, 218 S.W.2d 248, 254 (Tex.Civ.App., Amarillo, 1949, error ref. n.r.e.); Green v. Ligon, 190 S.W.2d 742, 749 (Tex.Civ.App., Fort Worth, 1945, error ref. n.r.e.); Kiel v. Mahan, 214 S.W.2d 865, 867 (Tex.Civ.App., Fort Worth, 1948, error ref. n.r.e.); Parker v. Gulf, Colorado & Santa Fe Railway Co., 401 S.W.2d 265, 267 (Tex.Civ.App., Tyler, 1966, no writ); Leatherwood Drilling Co. v. TXL Oil Corporation, 379 S.W.2d 693, 696 (Tex.Civ.App., Dallas, 1964, error ref. n.r.e.); and Powell v. Powell, 378 S.W.2d 943, 945 (Tex.Civ.App., Beaumont, 1964, no writ).

On the other hand, if there be evidence of probative value sufficient to support affirmative jury findings on such issues, viewing the evidence and circumstances in the light most favorable to such affirmative findings and disregarding all such to the contrary, the issues should be submitted. Wilkinson v. Lindsey, supra (321 S.W.2d at p. 165). This is so even though a court of appeals would have to set aside findings which were based upon evidence requiring submission. Norvell Service Company v. Spell, 288 S.W.2d 133 (Tex.Civ.App., Beaumont, 1955, error ref. n.r.e.). See also Cox v. Rhodes, 233 S.W.2d 924 (Tex.Civ.App., El Paso, 1950, no writ); Johnson v. Karam, 466 S.W.2d 806 (Tex.Civ.App., El Paso, 1971, error ref. n.r.e.); Sharp v. Chrysler Corporation, 432 S.W.2d 131 (Tex.Civ.App., Houston--14th, 1968, error ref. n.r.e.); and Hanks v. LaQuey 425 S.W.2d 396 (Tex.Civ.App., Austin, 1968, error ref. n.r.e.).

We examine the evidence in the light of these directives. Plaintiff called Dr. Ewin A. Eads, a professor of chemistry at Lamar University in Beaumont. He has a Masters Degree in chemistry and a PHD from Tulane University of New Orleans in inorganic chemistry. Dr. Eads testified that calcium carbide when mixed with water produces a compound known as acetylene, which is principally used in this country for cutting steel along with pure oxygen. It has also been used to ripen fruit, i.e. 'certain fruit is ripened, or turns yellow, whether it actually ripens or not, it's questionable, but the color of the fruit turns yellow.' Dr. Eads stated that bananas are one of the fruits that so react. He then went on to say that when calcium carbide is mixed with water, along with the production of acetylene, calcium hydroxide is produced which is very sensitive to volume changes by which he meant that 'if you have a mixture of this gas with air, let's say, and you release the pressure at least a tenth to three-tenths of an atmosphere, the gas will decompose and Explode. (emphasis supplied) It doesn't require a spark, due to its high heat of formation or low heat of formation a minus 50.4 kilograms calories per mole. It's a tricky molecule . . . In other words, if you put it in a cylinder naked, with nothing in...