General Accident, Fire & Life Assur. Corp. v. Evans

• Decision Date: 16 February 1918
• Docket Number: (No. 7896.)
• Citation: 201 S.W. 705
• Parties: GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited, v. EVANS et al.
• Court: Texas Court of Appeals

201 S.W. 705

GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited, v. EVANS et al.

(No. 7896.)

Court of Civil Appeals of Texas. Dallas.

February 16, 1918.

Rehearing Denied March 16, 1918.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Proceeding under the Workmen's Compensation Act by James Evans and others against the General Accident, Fire & Life Assurance Corporation, Limited. An award was confirmed by the district court, and the company appeals. Affirmed.

Smith, Robertson & Robertson, of Dallas, for appellant. J. W. Ownby, of Paris, and Curtis Hancock and George & Hardwicke, all of Dallas, for appellees.

TALBOT, J.

The surviving widow and minor children of Russell Engledove, deceased, the widow suing in her own right and the children by their next friend, James Evans, appellees, brought this suit against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland, appellant, to recover the compensation due them under what is known as the Workmen's Compensation Act of this state, on account of the death of the said Russell Engledove while in the employ of O. L. Gregory Vinegar Company at Paris, Tex. The sufficiency of the pleadings is not questioned, and the salient facts agreed to and developed in the trial, in substance, are as follows:

Russell Engledove, a negro, on October 29, 1914, was in the employ of the O. L. Gregory Vinegar Company, a corporation engaged in the manufacture of vinegar, and on that date lost his life in an attempt to rescue from death a fellow employé. The O. L. Gregory Vinegar Company had in all respects complied with chapter 179 of the Acts of the Thirty-Third Legislature of the State of Texas, relating to employers' liability and providing for the compensation of certain employés, and had elected to carry employers' liability insurance with the appellant, the General Accident, Fire & Life Assurance Corporation, Limited. Prior to the 29th day of October, 1914, the said appellant had issued to the O. L. Gregory Vinegar Company a valid policy of insurance for the benefit of the employés of said company, and for the benefit of the heirs and beneficiaries of such employés. The appellee Alice Engledove was the wife of Russell Engledove at the date of his death, and the other appellees, Malcolm and Wesley Engledove, were his only children. The deceased, Engledove, was a general laborer, and was shifted, as were all the other employés, as occasion demanded from one department to another. For some time prior to his death Engledove was employed in the cooperage department. He had, however, during his employment, cleaned out vinegar tanks; but that was no part of his duty on October 29, 1914, the date of his death. On the 29th day of October, 1914, Frank M. Crawford was superintendent of the vinegar company, and Herman Ingram was said company's foreman, and both had authority to employ and discharge Russell Engledove.

In the manufacture of vinegar, large vats or tanks were used by the vinegar company, in which to place sugar for fermentation. In the fermentation of the sugar in the vat, a deadly, poisonous gas is generated, and after the contents of the vat are withdrawn the vat remains charged or filled with such gas. The vats of the vinegar company were about 15 feet in height, and entrance into them was through an opening in the top. It was necessary from time to time for some employé of the vinegar company to enter these vats and clean them out. For the purpose of driving the deadly gas out of the vat, and to prevent a person from being overcome by its effects, water was used. On October 29, 1914, about 12:30 o'clock p. m., in the usual course of the work in connection with the manufacture of vinegar, it became necessary and proper to clean one of the vinegar vats. Herman Ingram, the foreman, took two negroes, one of whom was named Thomas Nelson, and went on top of the vat for the purpose of cleaning it out. After reaching the top of the vat, Ingram left the two negroes there and went to the pump room to turn on the electric light to use in cleaning out the vat. At the time he left he cautioned the negroes not to go into the vat. He was gone about five minutes. When he returned he found the negro Thomas Nelson at the bottom of the vat lying on his back overcome by gas. The foreman at once called for help, and thereupon great excitement prevailed in the factory. The negro women, there being a number employed, began to scream and holloa, and the employés generally began to gather about the top of the vat in response to the foreman's cry for help. Among those who came was the superintendent Frank Crawford. When the superintendent reached the top of the vat, he began trying to fasten a hook, attached to a rope and dropped into the vat, into the belt worn by Nelson, with a view of drawing him out of the vat. At the same time one of the employés lowered an electric light into the vat, while another threw water from a hose in Nelson's face, for the purpose of trying to keep him from being killed by the gas. The superintendent was unable to hook the belt of Nelson, and was unable to accomplish his rescue by that method. At the time the negro Nelson was overcome in the vat by the gas, and at the time Foreman Ingram called for help, Russell Engledove, the deceased, was eating his dinner in the boiler room of the factory, and in response to the cry of the foreman for help he rushed to the top of the vat in which Nelson was lying. When he reached the top of the vat he seemed to realize that the superintendent, Crawford, was doing no good in fishing for Nelson's belt with the rope and hook, and that unless something was done at once Nelson would be dead before he could be taken out. Immediately thereupon Engledove wrapped a "gunny sack" around his head and face and descended into the vat by means of a ladder, attached the hook and rope to Nelson's belt, and Nelson was pulled out of the vat and after a time recovered from the effects of the gas. When, however, the deceased, Engledove, attempted to mount the ladder and ascend from the vat, he was overcome by the poisonous gas and died.

A "gunny sack" saturated with water wrapped around the head will in a measure protect a person from the effects of the poisonous gas found in the vat in which Engledove was overcome and died. At the time the deceased, Engledove, entered the vat, he did so for the purpose of rescuing and saving the life of his fellow employé, Thomas Nelson. He was laboring under great excitement and acting in an emergency. He was warned of the danger and told not to go into the vat. In this connection the foreman Ingram testified:

"Russell [Engledove] tied a piece of gunny sack about his face and started down into the tank under protest from me and others. We tried to keep him from going."

He further stated:

"When I saw Engledove start to go down into the tank, as I have stated already, I protested, fearing that he would be overcome by the gas; but seeing the peril of Nelson, and I suppose realizing that unless something was done at once Nelson would be dead before he could be gotten out, and that Crawford, who was fishing for Nelson's belt with a rope and hook was not doing any good, Engledove tied the gunny sack around his head and started down into the tank, and as he went by Crawford turned the hose on him and wet the sack."

Again he said:

"Then Engledove came. He came on the run right across the top of the tanks. He stopped just long enough to put a piece of burlap across his face. I think that some one on the top of the tank handed him the burlap. He said: `Let me there. I will go and get him.' Mack Jones said: `Stay out of there; do not go in there.' That is all that I remember that was said. There were a great many people there then, and a lot of excitement."

The superintendent testified that he got a rope with a hook on the end of it and began to fish for Nelson's belt and clothing, so as to pull him out, but could not get any hold; that about this time Russell Engledove, the deceased, came running to the vat; that the first thing Engledove did was to tie a piece of gunny sack about his face and start down the ladder into the tank under protest from several of those present. In another place in his testimony he said:

"Russell Engledove came running to the tank, tied a piece of gunny sack around his face, and started down the ladder into the tank, although the rest of us, as I have stated, told him of the danger. As he went by me, I turned the water on his head, so as to wet the sack and keep down the danger from the gas. When Engledove came to the tank, I was fishing for the negro Nelson, with a hook on the end of the rope, trying to catch his belt, but was not having any success, and we all realized, of course, that unless something was done at once Nelson would die."

He further said:

"I knew, from the gas and the effect it had on Nelson, that it was extremely dangerous. I told Engledove that it was dangerous, and not to go into the tank. I do not remember my exact language, but that was the sum and substance of what I said. Engledove came up in a hurry, picked up a piece of burlap, and put it around his face, and went by me down the ladder, and I turned the water hose on him."

Van Richardson, one of the laborers for the vinegar company, said that before Engledove went down into the vat several of the men standing around told him not to go. Who these men were he did not know. He said that Engledove remarked, "Shorty, I believe, if I put something over my nose, I can rush down right quick and tie the rope around him and come out right quick;" that some one said, "No, Russell, don't go into that tank." Mack Jones, another laborer said:

"I told him [Engledove] not to go; that one man in there was enough, and if he went it was apt to kill him. I caught hold of him, and again tried to keep him from going, but he went. As he started into the tank, I caught him by his...