Litton v. Travelers Ins. Co.

• Decision Date: 12 January 1950
• Docket Number: Civ. 2391.
• Citation: 88 F. Supp. 76
• Parties: LITTON v. TRAVELERS INS. CO. (GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, intervenor).
• Court: U.S. District Court — Western District of Louisiana

88 F. Supp. 76

LITTON v. TRAVELERS INS. CO. (GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, intervenor).

Civ. 2391.

United States District Court W. D. Louisiana, Lake Charles Division.

January 12, 1950.

COPYRIGHT MATERIAL OMITTED

Tooke & Tooke, Shreveport, Louisiana, for plaintiff.

Thompson, Lawes & Cavanaugh, Lake Charles, Louisiana, and Ben C. Dawkins, Jr., Shreveport, Louisiana, for defendant.

Plauche & Plauche, Lake Charles, Louisiana, for intervenor.

PORTERIE, District Judge.

This is an action by Otis L. Litton for personal injuries. The Travelers Insurance Co., Southern Alkali Corporation's insurer, is defendant.

Southern Alkali Corporation acquired custody of a plant situated near the city of Lake Charles, formerly used for the manufacture of chemicals during the last war, and was desirous of converting that plant to the manufacture of chlorine and caustic soda. Southern Alkali Corporation engaged H. K. Ferguson Company, industrial engineers, to accomplish this conversion.

At the time of his injury, Mr. Litton was in the employ of H. K. Ferguson Company as a steam fitter, and on the premises mentioned engaged in the duties of his employment.

At the time of Mr. Litton's injury, the work of converting the plant had advanced to the point that certain sections of it had been delivered to Southern Alkali and by them placed in operation.

The gas emanating from the cells which has been denominated "Wet Gas" is of such a corrosive nature that it cannot be handled in iron or other metal containers, but must be handled in ceramic vessels in what is known as "Haveg" pipe.

Much of the brief of the counsel for plaintiff has been borrowed from verbatim; or, if not, then the language taken has been styled from the argumentative to the declarative. We checked all statements of fact readily, as the brief gave, in each instance, footnote reference by page to the stenographic testimony.

"It is a lung irritant * * * the effects of chlorine gas on the lung, which it affects primarily, can cause a chronic bronchitis," says a doctor, witness in the case.

It was demonstrated in Mr. Litton's own case that it would actually burn the flesh. Mr. Litton experienced burns about his mouth and nose which resulted in the formation of sores. At the trial the Court observed the residual scars about his body and hands.

Dr. Rutherford T. Johnstone, whose deposition was taken on behalf of defendant, stated:

"The pathological effect of chlorine in wet form upon the bronchial system is that it produces a chemical irritation in various degrees. It may be so mild as to cause only a few minutes discomfort, or it may produce irritation of the lungs to a point where inflammation is produced and a serous exudate results, such as in pulmonary edema."

"Where one is engaged in the manufacture and distribution of an inherently dangerous agency, he is charged with the duty of exercising the utmost degree of caution, to the end that harm may not come to others." Mays v. Southwestern Gas & Electric Co., 174 La. 368, 140 So. 826.

"If, however, common experience has demonstrated that dangers lurk in the method adopted or in the instrumentality maintained by a person, he rests under the obligation of ascertaining the peril and taking precautions to avoid injury therefrom." American Jurisprudence, Vol. 38, page 747.

The manufacturing operations are conducted in two buildings some five hundred (500') feet long and sixty (60') feet wide, parallel, and connected by an enclosed bridge, thus forming a giant "H". Inside each of these buildings are two parallel lines of manufacturing cells extending the length of the building. At the time of the accident both cell-lines in Building 305 and that line of cells in Building 304 lying nearer Building 305 had been placed in operation. Mr. Litton and a group of Ferguson employees were engaged in the work of completing and conversion of the remaining line of cells in building 304 at a point some twenty (20') feet from the aisle traversing the building crosswise at its center. The exit subsequently used by the workmen opened out of a second bridge connecting Building 304 and another building which lay on the opposite side of Building 304 from the bridge connecting Buildings 305 and 304. Entry into this third building through the second bridge was blocked by a temporary barricade and the exit used was through the side of this enclosed bridge leading down a stairway to a point on the ground between Building 304 and the third building mentioned. Underneath and traversing the length of Buildings 304 and 305 directly below each of the respective cell-lines was a "Haveg" transmission line eighteen (18") inches in diameter which functioned to conduct the "Wet Chlorine" to another area for further processing.

The gas was conducted from the manufacturing cells through a gathering-line, which passed through openings in the floor of the building, to the transmission line just mentioned. These buildings were on pilasters and there was sufficient clearance beneath the building to permit walking in an erect position, even beneath the eighteen-inch transmission lines.

The cell-line already in operation in Building 304 was designated Unit No. 3. The cell-line on which Mr. Litton and the other workmen were engaged was designated Unit No. 4. In each of the respective transmission lines running beneath the cell units there was situated a device for protection of the pipe and manufacturing equipment from excessive pressure, known as a "Water-Seal". The device consisted of a "saucer" some six (6") inches in depth filled with water, and the end of an eighteen-inch "Haveg" pipe submerged to a depth of two (2") inches, except in the instance of one cell, which was submerged to the extent of two and one-fourth (2¼") inches. This tube connected into the eighteen-inch transmission line in the manner of a "T"; that is, with the shank of the "T" representing the tube having the end submerged in the water, and the cross representing the transmission line.

Obviously, the function of releasing pressure was accomplished when the pressure inside the tube, imposed on the surface of the water, became sufficiently great to displace the weight of the two (2") inches of water; consequently, the gas passes out the end of the eighteen-inch tube into the atmosphere.

It was from this water seal under the No. 4 cell-unit that the chlorine which attacked Mr. Litton came from.

We think that Mr. Litton was entitled to the legal status of not less than an "invitee" of Southern Alkali Corporation.

Southern Alkali Corporation initiated the manufacture of chlorine for its profit before the conversion was completed. Thereafter gas from lines in custody of Southern Alkali Corporation escaped and attacked Mr. Litton. Under the circumstances, Southern Alkali Corporation bears the burden of one who is the "keeper of a vicious and noxious substance" and one "engaged in the manufacture and distribution of an inherently dangerous agency".

Under the facts and circumstances of the instant case we hold that the doctrine of res ipsa loquitur applies. Horrell v. Gulf & Valley Cotton Oil Co., 15 La. App. 603, 131 So. 709; Dotson v. Louisiana Central Lumber Co., 144 La. 78, 80 So. 205; Lykiardopoulo v. New Orleans & C. R., Light & Power Co., 127 La. 309, 53 So. 575, Am.Cas.1912A, 976; Rose v. Stephens & Condit Transp. Co., C.C., 11 F. 438.

"The defendant in the damage suit coming under the doctrine of res ipsa loquitur must show that he did not do anything that he should not have done, that he left undone nothing he should have done and that he neglected no legal duty owed to the plaintiff. Vargas v. Blue Seal Bottling Works, 12 La.App. 652, 126 So. 707; Horrell et al. v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 131 So. 709." Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273.

Chlorine is a very dangerous substance; the plaintiff had legal rights on the premises; thereupon, it became incumbent upon the defendant to show that it took every reasonable and necessary precaution.

Southern Alkali Corporation has failed:

(A) To account for the sudden and abnormal increase in the lines at the time of the accident.

(B) In its obligation to furnish an adequate supply of respirators to the Ferguson workmen.

(C) To warn the Ferguson workmen properly within the premises under its operating jurisdiction.

(A) What was the cause of the very substantial increase in pressure as indicated by the recording aerometer dial at approximately 3:00 o'clock, November 21, 1947? This being the occasion on which the gas escaped from the transmission line through the water-seal and engulfed Mr. Litton. There is no answer in the record.

(B) We refer here only to the small respirators, used by the workmen for escape purposes while engaged in routine work.

Mr. Litton and the other workmen testified that they were led to believe by the instructions of their immediate superiors and by the action of Capt. Russell and other Southern Alkali Corporation employees that they were justified in expecting to be able to draw from the Southern Alkali Corporation's supply of respirators and gas masks; the former generally and the latter when the specific need required.

Capt. Russell, safety man of Southern Alkali Corporation at the time of the accident and at the time of the trial of this case, testified that the H. K. Ferguson employees habitually drew respirators from him; and with almost equal frequency they found that the supply was short.

Mr. Litton testified that on the day on which he was injured he attempted to draw a respirator from the Southern Alkali Corporation's warehouse, as was his custom, but none was available.

The entire procedure supports the conclusion that there was an arrangement between H. K. Ferguson and Southern Alkali Corporation to the effect that the H. K. Ferguson employees could expect to draw respirators from the Southern Alkali Corporation.

(C)...