Henry W. Cross Co. v. Burns

• Decision Date: 13 March 1936
• Docket Number: No. 10360.,10360.
• Citation: 81 F.2d 856
• Parties: HENRY W. CROSS CO. v. BURNS.
• Court: U.S. Court of Appeals — Eighth Circuit

81 F.2d 856 (1936)

HENRY W. CROSS CO. v. BURNS.

No. 10360.

Circuit Court of Appeals, Eighth Circuit.

February 3, 1936.

Rehearing Denied March 13, 1936.

Neill C. Marsh, Sr., and Charles E. Wright, both of El Dorado, Ark. (Neill C. Marsh, Jr., Joe K. Mahony, and Henry S. Yocum, all of El Dorado, Ark., on the brief), for appellant.

Robert C. Knox, of El Dorado, Ark. (S. E. Gilliam, of El Dorado, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought by appellee as administratrix of the estate of R. C. Burns, deceased, against the appellant, for damages for negligently causing the death of her husband, R. C. Burns. We shall refer to the parties as they appeared below.

It is alleged in the complaint that the defendant, at the times mentioned in the complaint, was engaged in the operation of a refinery at Smackover, Ark.; that plaintiff's intestate was employed as refinery superintendent by the Simms Oil Company, and that one C. L. Murphy was employed as refinery superintendent for the defendant, and was in charge and control of defendant's refinery plant at Smackover; that on July 13, 1933, plaintiff's intestate was invited by C. L. Murphy to come to the plant of defendant to consult and advise with him about certain refinery operations and constructions at defendant's plant, and while there as such invitee he was injured, and after suffering conscious, mental, and physical pain and anguish, died as a result of said injuries on account of an explosion and fire which occurred and took place by reason of the carelessness and negligence of the defendant, and of the carelessness and negligence of C. L. Murphy. The complaint describes certain of the appliances and machinery with which defendant's plant was at the time equipped, and alleges that Burns, plaintiff's intestate, being present at the invitation of C. L. Murphy, was being conducted through the plant by Murphy, and that by reason of the negligence of Murphy and other employees of the defendant, a certain caustic tank containing naphtha was caused to be exploded, bursting the tank, and throwing the naphtha therein to such distance as to bring it and its vapors in contact with fire and flames used in the operation of the refinery, so that the naphtha became ignited, causing fire immediately to spread throughout the refinery, enveloping Burns in flames and severely burning him, the said injuries resulting in his death; that the plant was under the exclusive management and control of the defendant, its agents, servants, and employees, and under the specific immediate control and management of Mr. Murphy, who was the superintendent in charge; that the explosion and igniting of the naphtha was a rare and unusual occurrence in the operation of a refinery, which Burns could not have foreseen; and that he was in the exercise of due care for his safety at the time of receiving his injuries. Specific acts of negligence are alleged, which, so far as relied upon, may be summarized as follows: (1) That the caustic tank, which exploded, had been constructed from an old worn out and defective secondhand tank purchased from a junk dealer, was full of holes through which the gasoline or naphtha leaked, had been patched by defective welding, the shell of said tank had been improperly and defectively welded to the bottom, so that naphtha leaked therefrom, and it was greatly weakened and insufficient to withstand pressure by reason of the defective and improper welding, so that it exploded and threw naphtha into the refinery area where it ignited; (2) the caustic tank was constructed and operated without any pressure gauge and without any pressure relief valve; (3) the outlet valve of the caustic tank was closed, permitting a high pressure to be built up in that tank and causing it to explode; (4) the valves on the line from the treating unit to the storage tanks were closed, permitting pressure to be built up in the caustic tank, and causing it to explode; (5) a death trap was created by the placing of large numbers of pipes and lines above the surface of the ground, running at various angles and crossing and intersecting one another at various points, by which plaintiff's intestate was prevented from escaping from the flames which resulted from the explosion and ignition of the naphtha; (6) that a highly hazardous and dangerous situation existed in said plant and plant area, of which defendant knew and was charged with knowledge, yet it invited Burns to come to the plant, and conducted him through the plant, and failed to warn and inform him thereof.

Defendant, in its answer, denied all allegations of negligence, particularly denied that Burns was an invitee, and alleged that he was a trespasser. It set up as an affirmative defense contributory negligence, and that if Burns died of negligence other than his own, it was the negligence of the Ampco Engineering Company, an independent contractor.

At the close of all the evidence defendant moved for a directed verdict. This motion was denied, and the case went to the jury, which returned a verdict for plaintiff, and from the judgment entered thereon this appeal is prosecuted.

Defendant seeks reversal on the grounds that: (1) The trial court erred in not directing a verdict for defendant; (2) there was no substantial evidence that any negligence of the defendant was the proximate cause of Burns' death; (3) if any negligence was the proximate cause of Burns' death, it was the negligence of Ampco Engineering Company, under whose full control the installation complained of as the cause of Burns' death was installed and operated as an independent contractor; (4) the court erred in refusing to amplify the instructions relative to the status of the Ampco Engineering Company as an independent contractor.

In considering the question of the alleged error of the lower court in refusing to direct a verdict in favor of defendant, it will be necessary to refer to the evidence. As to all controverted facts we must assume that the jury determined them in favor of plaintiff, and we must view the evidence in favor of plaintiff's cause of action in the most favorable light, giving to it such favorable inferences as may reasonably be drawn therefrom. So viewed, the evidence tended to show that Murphy, who was the superintendent in charge of defendant's plant, was experiencing some difficulty with that part of the plant referred to as the cracking unit. Burns was a skilled refining engineer of long experience, who was in charge of a similar plant of the Simms Oil Company. This cracking unit had but recently been installed, and Murphy was not familiar with it, nor had any of defendant's employees had experience with either the construction or operation of such unit. It had theretofore operated what is known in the record as a skimming plant. Murphy telephoned to Burns, first at Burns' residence. Burns and Murphy having both perished in the explosion, there was no direct testimony as to the nature of the telephone communication. Following this first telephone call, Burns went to the Simms Refinery. About an hour later, Murphy again called for him, and to a Mr. Williamson, who answered the phone, Murphy said he wanted to get hold of Burns; that they were having a little trouble. Burns appeared at the office about that time, and, taking the phone, talked to Murphy. Following this second call, Burns, with a party named Soars, left for defendant's office. Arriving there, they waited on the outside until Murphy appeared. Murphy then entered the plant, taking Burns and Soars with him. They passed on down through the boiler room, where Murphy, in charge of the party, introduced Soars to a Mr. Lechtenburg, then employed at defendant's plant. Murphy then said that they were going down to see what was wrong with the "cracker," referring to the cracking plant. They then left the boiler room, passed down to the area of the treating plant, and were inside the plant area when the explosion occurred.

There is evidence that Murphy often sought Burns' opinion and judgment in refining matters, seeking his advice on frequent occasions, and at times coming to the Simms Refinery to talk with him. During such visits, Murphy talked with Burns about the defendant's plant, and frequently Burns went to the Cross Refinery, and there was direct evidence that Murphy had called him to the plant several times. A witness employed at the Simms plant testified that he had seen Murphy at the Simms plant about once a month; that he heard Burns and Murphy discussing refinery problems; and that Murphy came and got Burns several times before the accident, and that Burns, on such occasions, would go to the Cross Refinery with Murphy.

There was, to be sure, testimony introduced by defendant, tending to show that Burns and Soars entered the plant on the occasion of the accident for another purpose, but the jury, having returned a verdict for plaintiff, must have accepted plaintiff's testimony as true, and disbelieved that of defendant.

An invitation to enter upon property of another may be either express or implied, and the rights of the invitee and the duties of the inviter are the same in either case. The oral testimony, when considered in connection with the surrounding facts and circumstances, tended to prove that Burns was not a trespasser; that he was more than a bare licensee. He entered the premises on the invitation of the person in charge on a mission supposed to be beneficial to the owner. In Middleton v. P. Sanford Ross (C.C.A.5) 213 F. 6, 10, the rule is stated as follows: "Invitation of the...