J. S. Abercrombie Co. v. Scott

• Decision Date: 18 March 1954
• Docket Number: No. 12626,12626
• Citation: 267 S.W.2d 206
• Parties: J. S. ABERCROMBIE CO. v. SCOTT et al.
• Court: Texas Court of Appeals

Page 206

267 S.W.2d 206

J. S. ABERCROMBIE CO. v. SCOTT et al.

No. 12626.

Court of Civil Appeals of Texas, Galveston.

March 18, 1954.

Rehearing Denied April 22, 1954.

Fulbright, Crooker, Freeman & Bates and M. S. McCorquodale, Charles M. Haden, and William H. Vaughan, Jr., Houston, for appellant.

Frank Rosson, San Antonio, Eugene J. Wilson, Houston (Kemper & Wilson, Houston, of counsel), for appellee.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Brazoria County by Mrs. Arminta Lois Scott, individually and as guardian of her three minor children, against J. S. Abercrombie Company to recover damages for the death of Floyd Scott, husband and father respectively of plaintiffs, which was alleged to have been caused by gross negligence on the part of the defendant company, employer of the deceased. Trial was to a jury, which in response to special issues submitted by the court, found the defendant guilty of gross negligence on a number of counts and awarded plaintiffs actual damages in the sum of $195,000.00 and exemplary damages in the sum of $135,000.00. Upon such verdict judgment was rendered in favor of the plaintiffs in the amount of $135,000.00 exemplary damages, the defendant company being a subscriber to the Workmen's Compensation Act insofar as actual damages were recoverable. From such judgment J. S. Abercrombie Company appeals.

Appellant presents 36 points of error. Points 1 to 5, inclusive, are based upon the proposition that the judgment should be reversed and rendered in appellant's favor because of the insufficiency of the evidence to justify the submission of issues on gross negligence or to support the findings of the jury thereon. The remaining points of error asserted by appellant are directed to errors which, if sustained, would require that the judgment be set aside and the cause remanded for retrial. Points 6 to 8, inclusive assert that the answers of the jury to the issues on exemplary damages were against the overwhelming weight and preponderance of the evidence, grossly excessive, and were arrived at though misconduct on the part of the jury. By point 9 appellant contends that the jury's finding that the deceased did not assume the risk of the injury which caused his death is against the overwhelming weight and preponderance of the evidence. Point 10 is directed to the refusal of the court to submit the requested issue of unavoidable accident. Points 11 to 13, inclusive, are directed to the form of certain submitted issues on the ground that they constitute a general charge. Points 14 to 25 are directed to the definition of gross negligence used in the court's charge. Points 26 to 34 are directed to the definition of proximate cause used in the court's charge, and points 35 and 36 complain of the form of certain submitted issues on the ground that they constitute a comment on the weight of the evidence.

After carefully considering the record in this case, especially the testimony therein reflected which had any bearing upon the issue of gross negligence, this Court feels compelled to hold that the trial court erred in overruling appellant's motion for an instructed verdict and its motion for judgment non obstante veredicto. This conclusion, if correct, requires that appellant's points 1 to 5, inclusive, be sustained and that the judgment of the trial court be reversed and judgment here rendered in favor of appellant. This conclusion also renders unnecessary any consideration of appellant's remaining points of error and appellees' counter-points in reply thereto.

The accident appears to have occurred in substantially the following manner: The deceased, Floyd Scott, was a member of a five-man maintenance crew of mechanics employed by appellant to repair and maintain machinery and equipment in a pressure maintenance plant operated by appellant as a part of its gasoline plant in the Old Ocean Field in Brazoria County. The over-all purpose of the gasoline plant was the extraction of liquid gasoline from natural gases produced in the Old Ocean Field. After extraction of such liquids from the produced gas, the remaining dry gas was conveyed by pipes to the pressure maintenance plant where it was compressed to a pressure of 3750 pounds per square inch. Upon reaching such pressure, the dry gas is conveyed by pipes into the same subterranean strata from which it was originally extracted, the object being to maintain the pressure in the gas producing strata and thus facilitate the extraction of the gasoline bearing natural gases.

The pressure maintenance plant is housed in a rectangular metal building, within which are installed 22 gas compressors, 11 on each side of the building. Compressed gas leaves the plant in a 5 inch discharge line which returns the gas by connecting lines to the producing underground strata. A part of the equipment of the pressure maintenance plant consisted of a 4 inch vent line buried several feet underground which after encircling the plant continued to a point some distance therefrom where it was turned upward and terminated above ground as an open-ended line. The purpose of this vent line was to relieve the gas pressure within the various compressors either when desired for the purpose of repair or when the pressure exceeded that considered safe. To effectuate this purpose each compressor was connected to the vent line by two lines leading through the wall of the building adjacent to such compressor and thence underground to the vent line. One such line was called a 'bleeder line.' It consisted of a 1 inch line in which was contained a manually operated valve, by the operation of which pressure within any compressor could be intentionally relieved into the vent line. The other line was called a 'shear valve line.' It consisted of a 2 inch line which led from the compressor through the wall of the building into a 'U' shaped pipe which in turn connected to a perpendicular pipe leading to the underground vent line. In the 'U' shaped portion of this line was installed a shear valve designed to open automatically when pressure exceeded that considered safe.

Floyd Scott died as the result of burns caused by a fire which occurred on November 28, 1950. For several days prior thereto he, together with other members of the maintenance crew, had been engaged in the execution of a plan whereby the shear valve line would be eliminated as a safety device and in its place would be substituted an automatic pressure relief valve installed in a perpendicular pipe exhausting into the air above the roof-line of the plant building. The accomplishment of this plan entailed the removal of the 'U' shaped portion of the shear valve line by disconnecting it at a point outside the building will from the pipe leading from the compressor and disconnecting if above the ground from the pipe leading to the underground vent line. The plan contemplated that the pipe leading to the underground vent line would be capped or plugged and the line leading from the compressor would be connected to the perpendicular pipe exhausting above the roof of the building. This operation was required for each of the 22 compressor units. The vertical vent line was to be attached to the wall of the building by metal brackets. At the time of the fire Scott and another workman, James Clayton, were on a ladder 10 or 12 feet above ground using an electric drill to bore holes through the building wall into which the metal brackets were to be bolted. The 'U' shaped portion of the shear valve line had previously been removed but the line from which it had been disconnected leading to the underground vent line had not been capped or plugged but was left open-ended. Gas from some source came through such open-ended line, ignited and caused serious burns to both men. Clayton recovered but Scott died a few days later.

The work described had been in progress for several days when the fire occurred and several of the shear valve lines had been replaced with the vertical presure relief valves. Scott with the other members of his crew reported for work about 6 a. m. on the day of the fire. The crew consisted of Scott, Clayton, Ray Ward, who was designated as leaderman, and two other men. Scott and Clayton removed the 'U' shaped portion of the line containing a shear valve. They checked a pipe leading to the underground vent line and detected no appreciable amount of gas, stuffed rags therein and wired them in the pipe. They then proceeded with the installation of the vertical pipe leading above the roof of the building by boring holes in the building wall to which the vertical pipe was to be bolted for support. At about 7 a. m., while this operation was in progress, Reeves, who was identified as foreman of the pressure maintenance plant, arrived. He testified that upon inspecting the rags which had been stuffed in the line leading to the underground vent line, he instructed Scott and Clayton that they might continue that particular installation but upon its completion and before proceeding with additional...