Gulf Oil Corporation v. Wright

• Citation: 236 F.2d 46
• Decision Date: 10 August 1956
• Docket Number: No. 15692.,15692.
• Parties: GULF OIL CORPORATION, Appellant, v. Mrs. Eva WRIGHT and The Standard Insurance Company, Intervener, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

236 F.2d 46 (1956)

GULF OIL CORPORATION, Appellant, v. Mrs. Eva WRIGHT and The Standard Insurance Company, Intervener, Appellees.

No. 15692.

United States Court of Appeals Fifth Circuit.

August 10, 1956.

Raymond A. Lynch, William L. Kerr, Midland, Tex., Turpin, Kerr & Smith, Midland, Tex., of counsel, for appellant.

John P. Dennison, Pecos, Tex., Alton C. Linne, Monahans, Tex., for appellee, Mrs. Eva Wright. Martelle McDonald, McDonald & Shafer, Odessa, Tex., for appellee, The Standard Insurance Co.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

John R. BROWN, Circuit Judge.

Wright, an employee of Zephyr Drilling Corporation, an independent contractor drilling an oil well for Gulf Oil Corporation in the West Texas area, was asphyxiated on the morning of May 9, 1953, while he and Simpson, Driller on Tour 2, were jetting out one of the pits. By verdict on a general charge, the jury found Gulf negligent on one or more of these grounds: failure to furnish safe place to work, to make tests of gaseous water flowing from the well, to warn Wright, to mud off the gas formation and ordering the continuing of drilling in the face of the known presence of gas. And, in doing so, the jury impliedly made findings favorable to the plaintiff that Wright was not contributory negligent, did not voluntarily work in hazards known to him, that Wright was not acting as an employee of Gulf, that the defects and dangers were not those known or which should have been known to invitees and death was not caused by the sole negligence of Zephyr, his employer, or as the result of transitory conditions incident to the progress of the work.

Raised in several ways is Gulf's principal contention that there is no evidence showing that fatal injuries resulted from a violation of any duty owing by Gulf to the employees of its Contractor, especially since the danger must have been well known and of a nature which the Contractor should have guarded against, and arose during performance and long after Gulf had admittedly turned over, as lessee, a safe well site.

During¹ Tour 1 on May 8, while drilling at a depth of about 3400 feet, a heavy water flow was encountered about 3:00 or 4:00 a.m. The Driller shut down, notified the Contractor's Tool Pusher, but apparently allowed the water to continue flowing. The water had a strong sulphur odor like rotten eggs and had a tendency to make the men gag and to burn their eyes. On instructions of the Tool Pusher, drilling was resumed but between 5:30 and 7:00 a.m. when Gulf's superintendent was notified for the first time, drilling was stopped on Gulf's orders² to close the well in. During Tour 2, May 8, the well was tested by connecting flow lines to a test tank permitting the water to flow into the tank to determine its rate of flow. In the meantime the crew of Tour 2, under supervision of Gulf's mud engineer, began conditioning the mud to obtain a desired weight sufficient to seal off or "mud off" the water flow and fumes. The mud was not used nor was any drilling done on this Tour.

On Tour 3, May 8, water testing had been completed and the flow shut off by the blowout preventer. On instructions³ of Gulf, drilling was resumed about 7:00 p.m. using the water flow as drilling fluid without any mud. The gaseous water was, therefore, flowing from the well through pipes into the pits. Gulf's decision to use the water flow as drilling fluid and not seal off or "mud off" this water flow and fumes was based on its desire to save the water sand for possible future testing and development as an artesian water well for water flooding recovery procedures on old oil wells in that area.

About 7:30 to 8:00 o'clock one of Oliver's drilling crew went out to the shale shaker where the fluid was returning back out of the well and reported that there was a strong gas odor there. Oliver passed the word to his crewmen to be careful about the gas. Drilling continued until the end of Tour 3 and when relieved by Hightower, Oliver told him that one of the men had had some trouble with the gas and warned Hightower to be careful with his crew to see that none of them got into the gas.

Tour 1, May 9, continued drilling until about 6:30 a.m. when drilling was shut down because of loss cones. In the interim the obnoxious smell continued, and one member of the crew vomited from it. While awaiting fishing tools, the men went about cleaning the pits. When Tour 2 relieved him some time prior to 8:00 a.m., Hightower warned Simpson about the men being affected by the gas and told Simpson that he had had orders not to let one man go around the pit by himself.

As Tour 2 started its work, Simpson and Wright went to take care of the pits, Simpson showing Wright what he wanted done. Although the well was shut down, the water was still flowing into the pits and had the strong odor of sulphur. Apparently they were completing the jetting of the fluid into the shale pit. Shortly, an outcry was heard, Wright and Simpson were found at the edge of the reserve pit, Simpson was revived but not Wright. It is uncontradicted that it was the Contractor's duty to build, care for, and clean out the pits, and this was one of Wright's regular duties.

Undercutting all other contentions by Gulf is the basic one that on this evidence a directed verdict ought to have been granted. We have concluded that this point is well taken, although, because it rests in large part on the unusual presentation of the case on causal relationship, justice would best be served by a remand for a new trial for full development under the applicable principles. Associates Discount Corp v. United States, 5 Cir., 200 F.2d 537; City of Ft. Worth v. United States, 5 Cir., 188 F.2d 217; M. M. Landy, Inc., v. Nicholas, 5 Cir., 221 F.2d 923.

There was no proof of any kind on the cause of death. It was, of course, stipulated that death was due to asphyxiation. Assuming that, in the light of testimony of adverse medical effect of the gases on two of the employees and the sudden collapse of Wright and Simpson on short exposure near the pit, there was enough evidence from which to infer that the gas produced the death, there was yet no proof as to its nature, that is, the kind of gas or the kind of poison it contained. To be sure, there was much assumption that from the odors smelled, the gas generally was hydrogen sulphide, but the plaintiff's theory⁴ seemed to be that it was not this well-known gas, but some special, new or different poisons in the gas which brought on these injurious consequences.

On this interpretation nothing but the asphyxiation appeared to establish its fatally toxic character. The poisonous gas which appellee claimed caused the death not even being identified, how can Gulf's duty to foresee its presence and toxicity be tested? How can we say that Gulf should have anticipated that it would encounter this particular gas and that, once encountered, Gulf knew that it had fatally poisonous characteristics and that others would not know this? Since this involves us in the ascertaining whether "* * * reasonable men could not possibly come to a contrary conclusion", 5 Moore's Federal Practice, § 50.02, page 2314; Banks v. Associated Indemnity Corp., 5 Cir., 161 F.2d 305, 310; Ryan Distributing Corp. v. Caley, 3 Cir., 147 F.2d 138, 140; we must, of course, consider the record in the light of the general state of knowledge which "reasonable minds" would possess.

Testing it in this approach convinces us that, on this record, there is no basis for a conclusion that this was a unique, or unknown gas, but that, on the contrary, the conclusion is inescapable that the fatal gas was the common, frequently encountered and well-known hydrogen sulphide. In this process it is evident that we must draw on general knowledge, including scientific and technical information, not to arrive at a fact conclusion that it was hydrogen sulphide, but to determine whether a contrary conclusion on this record can have reasonable support. Once that is determined, the consideration of this factual issue of cause, forseeability and prudence becomes a matter for jury decision on the new trial on the basis of evidence, factual and scientific, there presented.

This analysis starts with the uncontradicted evidence of the "sulphur" odor, the smell of rotten eggs, and the location of this well in West Texas. The presence of hydrogen sulphide in West Texas oil operations (drilling, transportation, refinery) has long been known as has been the acute hazard to health and life resulting from it.⁵

Its extreme hazard arises in part from the fact that while, in lower concentrations, it has the characteristic odor of rotten eggs⁶ (the gas is a by-product of decomposition, putrefaction of organic matter), this is lost⁷ as concentration increases and, in the meantime, continued exposure adversely affects the function of the sense⁸ of smell, increases respiration and consequent inhalation of the gases producing, in turn, paralysis of the respiratory system⁹ and rapid death. The gas is heavier than air, readily settles in low and damp places,¹⁰ is highly soluble in water with gas being released on agitation,¹¹ and is so toxic that even minute concentrations are deadly.¹² The usual telltale warning of its presence, besides the rotten egg odor, is burning of eyes (conjunctivitis), irritation of the nose, throat and lungs, dizziness, gagging, shortness of breath, vomiting, and similar effects,¹³ all of which were present here.

This gas in oil operations has been a killer. It has long been the object of study and investigation on a wide front with recognition by the industry¹⁴ of its hazards¹⁵ in Texas¹⁶ and elsewhere and the precautions¹⁷ necessary to avoid its awful toll. This includes drilling operations and, particularly, drilling contractors.¹⁸

All of this is important for the widespread knowledge of this industrial hazard has, or may have, a marked effect on the standard of care...