Lamb v. Shell Chemical Company
| Decision Date | 03 February 1972 |
| Docket Number | No. 15799,15799 |
| Citation | 476 S.W.2d 885 |
| Parties | Adele L. LAMB et al., Appellants, v. SHELL CHEMICAL COMPANY et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Garrett & Letbetter, Tom R. Letbetter, George Payne, Mounger & Whittington; Rex C. Mounger, Houston, Atty. Ad Litem for Robin Lamb, a minor, George D. Neal, Houston, for appellant.
Robert J. Malinak, Houston (Baker & Botts, Houston, of counsel), for appellee Shell Chemical Co.
Fulbright, Crooker & Jaworski, Jerry V. Walker, Rufus Wallingford, Houston, for appellee H. K. Ferguson Co.
Gerald P. Coley, Houston (Visnon, Elkins, Searls & Smith, Houston, of counsel), for appellee Fisk Electric Co.
This is a death action which arose from the death of Edward N. Lamb, and was brought by Adele L. Lamb, individually and as next friend for Robin L. Lamb, Mila Jean Lamb Thompson, joined by her husband, Kenneth D. Thompson, and as the community survivors of the Estate of Edward N. Lamb, Deceased, against Shell Chemical Company, a division of Shell Oil Company, Shell Oil Company, H. K. Ferguson Company, in which suit Shell sought contractual indemnity from H. K. Ferguson Company, and H. K. Ferguson Company plead for contractual indemnity against Fisk Electric Company, the employer of Edward N. Lamb at the time of the accident resulting in his death, and in which Liberty Mutual Insurance Company, the Workmen's Compensation Insurance Carrier for Fisk Electric Company intervened. This appeal is from an instructed verdict that plaintiffs take nothing against H . K. Ferguson Company and from a take nothing judgment entered upon the jury's verdict as to Shell Chemical Company and Shell Oil Company.
Edward Lamb died as the result of a fall from a ladder. The jury found that he sustained an electrical shock which caused him to fall . The jury answered, 'We do not,' to Special Issue No. 1, reading: 'Do you find from a preponderance of the evidence that between 8:15 A.M. and 8:45 A.M. on the morning in question, Shell Chemical Company, acting through its officers agents, servants, employees or trainees, turned on the switch that energized the alarm circuit?' Several groups of negligence issues predicated on an affirmative answer to Special Issue No. 1 were not answered. The jury failed to find Lamb guilty of any conduct constituting contributory negligence. Fisk Electric Company was found to be negligent in connecting the wire in question to the alarm panel circuit; that this negligence was a proximate cause of the occurrence, but not the sole proximate cause. The jury found that the occurrence was not an unavoidable accident, and found substantial damages.
Appellants contend that the answer made to Special Issue No. 1 is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. A determination of this question requires that we consider all of the pertinent evidence.
Ferguson contracted with Shell to construct a chemical plant near Deer Park in Harris County, Texas. Fisk was an electrical subcontractor under Ferguson. There were five separate chemical processing and treatment areas in the Chlor/Alkali (C/A) unit of the plant. The accident resulting in Lamb's death occurred in the chlorine handling area of the C/A Unit on June 7, 1966. The contract provided for 'phase work.' As various areas or units were completed, they could be accepted by Shell so that the training of employees to operated the units could begin. Of the five chemical processing and treatment areas in the C/A Unit, only the brine treating area and the reagent preparation area had been accepted for operation by Shell prior to the accident. One control room operated the entire C/A Unit. Each of the five areas which made up the C/A Unit was controlled by a central electrical panel located in the control room. The control panel was made up of different segments which corresponded with the separate areas of the unit which were governed thereby. Shell accepted each segment of the control panel as it accepted for operation the corresponding area of the C/A Unit. The alarm panel was common to all of the five areas which made up the C/A Unit. Its function was to notify the operators in the control room of the location of an abnormal condition if such a condition should arise in the field.
The electrical power for the alarm panel was controlled by an enunciator switch on the back side of the control panel. This switch activated the alarm systems in all areas of the C/A Unit. Shell accepted control over this switch when it accepted the brine treating area for operation.
Lamb was installing electrical conduit in an area which had not been turned over to Shell at the time he was shocked. He would not have been shocked if the alarm circuit wire, near which he was working, had not been terminated in the alarm panel. There was no necessity for that wire to have been terminated while work continued in the area and it was not customary procedure to have live wires in areas where new construction was proceeding. Lamb's co-worker did not know that the wire to the alarm system in the area where they were working had been terminated into the alarm panel. On the date of the accident a number of Shell operators were at work in the control room. While they were experienced operators, they were being trained to operate this particular system. Their supervisor was not in the room at the time of the accident. They reported for word at 7:30 A.M. George Brantley, a Fisk employee, arrived at work at about 8:15 A.M. He testified that the alarm panel lights were not on at that time. Brantley, James Vestal, and a Ferguson employee were the only persons in the control room at that time except for the Shell employees. None of the Shell trainees were called as witnesses.
There is testimony that both before and after the date of the accident Ferguson employees and employees of its subcontractors were in and out of the control room and that the Fisk employees were working on the control panels. Brantley testified that he did not see or hear anyone enter or leave the room after he arrived and before the accident. He acknowledged that he was not in a position to see at least part of the time and that it was possible someone else did enter the room. The only people he had ever seen turn on or off the alarm system were either Shell or Fisk employees and no one else ever had a reason to do so. Vestal testified that from the position where he and Brantley were working Brantley could not see the doors. He also testified that because of the detailed nature of the work he was doing, he was concentrating on the work and was not aware of who was coming and going.
Vestal assigned jobs to the electricians. He saw Lamb and Lannon in the dressing shack the morning of the accident and walked to the work site with them. They did not go to the control room before going to their work area. He did not mention assigning anyone else to work on that morning. The men who had not finished assigned jobs would continue on them and would go directly to the work area. No electricians other than Vestal and Brantley were working in the control room. Vestal testified that an electrician might have come to the control room that morning for information or supplies, but that he didn't remember whether one did or not. His desk on which his papers were kept was outside the control room door. The inference to be drawn from his testimony is that from the knowledge he had of the work being done, he would not expect any electrician to have occasion to use the enunciator switch controlling the alarm panel.
Vestal testified that the alarm panel was on all the time unless an electrician turned it off when required by his work, and that he would turn it on again when he was finished. He explained his previous deposition testimony that Shell had energized the circuit by saying that the circuit was usually energized when he got to work and that the Shell training class arrived before he did every morning. He testified that he knew the alarm circuit on which Lamb was working was energized; that he was relocating the alarm device; and that it was not new construction. Lannon, the working partner of Lamb, disputed this testimony, and said that it was new construction which should not have been terminated, and that he did not know the wire was energized. Vestal was tendered as a witness by Fisk. His testimony was not consistent in material respects with that of Lannon and Brantley, witnesses tendered by the Lambs. He testified that a careful electrician would not work on a hot wire; that he could shut off the electricity by throwing a switch, disconnecting the wire, or by shorting out the circuit; or that he could tape the exposed part of the wire.
None of the areas in the C/A Unit were in use for production purposes. The alarm system was in use in connection with the training work being conducted in the brine treating area. Mr. Colditz, the assistant manager of operations for Shell, testified that the switches in the control room did not remain on all of the time, and that the trainees were taught how to turn on and off the various switches, and that the switches were turned on and off in the training sessions. He did not know whether the flow of electricity to the area where Lamb was hurt was on or off on the morning of June 7, 1966. He did not remember whether he had visited the control room that morning, but he was at the main office when the accident happened.
In attempting to determine who turned on the switch activating the electric line involved in the accident resulting in the death of Mr. Lamb, no one can be eliminated as possibilities other than the witnesses who testified. However, it cannot be considered probable that anyone would have used the switch other than the electricians and the Shell trainees. The jury might have concluded from the testimony that...
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Shell Chemical Co. v. Lamb
...that Shell take nothing against Ferguson and that Ferguson take nothing against Fisk. The court of civil appeals reversed and remanded. 476 S.W.2d 885. We reverse the judgment of the court of civil appeals, and we affirm the judgment of the district The court of civil appeals reversed the j......