Malley v. Union Indemnity Co.

• Court: Texas Supreme Court
• Writing for the Court: Nickels
• Citation: Malley v. Union Indemnity Co., 12 S.W.2d 1002 (Tex. 1929)
• Decision Date: 23 January 1929
• Docket Number: (No. 1156-5122.)
• Parties: MALLEY et al. v. UNION INDEMNITY CO.

Page 1002

12 S.W.2d 1002

MALLEY et al. v. UNION INDEMNITY CO.

(No. 1156-5122.)

Commission of Appeals of Texas, Section A.

January 23, 1929.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the Union Indemnity Company against Mrs. Mary Malley and others to set aside an award in compensation proceedings. Judgment for defendant was reversed and rendered , and defendant brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Johnson & McConnell, of Houston, for plaintiffs in error.

Vinson, Elkins, Sweeton & Weems, and C. M. Hightower and E. D. Adams, all of Houston, for defendant in error.

Statement of the Case.

NICKELS, J.

Holcomb (employer) was engaged "in * * * filling back of a wall" which extended "between 1,500 and 1,800 feet" along the "water front." "Dirt" excavated from "cuts" in the vicinity was used in the "fill," and, at various periods, water would be pumped on the "dirt" so as to "settle" it "down." The "premises" throughout length of the "fill" was several hundred feet wide. Generally, the work was prosecuted during "daytime" and "nighttime." Holcomb would be present part of the time; and, when present, he had immediate charge and direction of all work and employees; in his absence Blair (at times) and Weeden (at other times) represented him in direction of work and employés.

The "premises" included machinery, etc., as follows: (a) A pump operated by a "gasoline engine" used in the "settling" process. (b) A "drag line" used in excavating, etc. (c) A "portable toolhouse." These things were so located as to be several hundred feet each from the others; the "pump" being about half-way between "drag line" and "toolhouse."

The "toolhouse" consisted of one "room" built upon a truck frame. Its floor surface was about two feet above ground surface; its walls (inside measurement) were about five feet in height, the side walls being from "twelve to fifteen feet long" and the "room" being "about eight" feet wide. In each side wall there was a door space about two and one-half feet wide and extending from floor surface almost to roof. These openings were directly opposite, and the side of each (nearest the front) was about three feet from the end of the "house." One-piece shutters were provided for each opening—so hinged as to open outward and backward against the wall. The "front" end of the building was completely closed. There was no wall at the rear end, but two shutters (of equal dimensions) were provided—so hinged as to open outward. "Wires" were attached to the walls so as to hold the shutters when the "doors were open." Except when the "house" was being moved from "job to job," etc., and (possibly) except in heavy rains, the door shutters were supposed to be kept "wired back"; they were in fact so "opened" and fastened at the latest period of knowledge of conditions; i. e., about 8:30 o'clock p. m., May 14, 1926, prior to Malley's death.

Within the "room" of the "toolhouse," and immediately between the side door openings, there was a "gasoline engine," batteries and wires used as equipment for lighting the "premises." Lighting equipment was so arranged as that current would be available for lighting for a period after the "gasoline engine" would be "stopped." Apparatus for "starting" and "stopping" the engine and for "turning on" or "turning off" light current was so arranged at the side-door spaces as that a person (from the outside) could manipulate it. Receptacle from which the engine was supplied with gasoline was situated within the "room," but so arranged as that a person could fill it without entering the room; i. e., "by leaning over the machine," and he "wouldn't be comfortable doing it that way," although it "was supposed to be put in from the outside." "To oil that engine," Weeden said, "we kept oil in a can in or near the toolhouse somewhere."

Weeden once said that "oil, etc., for the drag line were kept in the toolhouse where they could be locked up." In another connection he said: "To carry out instructions he did not have to go in that toolhouse to get oil because we kept the alemite" (i. e. oil for the "drag line," etc.) "on the machine."

Within the room, along the left-hand wall (looking forward), and about two feet above the floor surface, there was a bench or shelf about fifteen inches wide.

The room (including the shelf) was used for storage of tools, "parts," "oil cans," "cables," etc.

Malley (employee) was 25 years of age, weighed 167 pounds, was five feet eight inches "tall," and was in good health. "He was smart and * * * knew something about gasoline engines."

That the "gasoline engine" as operated likely would, and in fact did, generate or release "carbon monoxide gas" within the "room," that such "gas" was deadly, and was, in fact, the immediate cause of Malley's death, is not questioned or, on the record, questionable. Dr. Kenner (qualified as an expert) said: "When one inhales carbon monoxide gas there is no pain at the time"; "the inhalation of carbon monoxide gas is something like any other anæsthetic administered"; "it would take at least twenty minutes before he would begin to feel anything and it would take about an hour with slight ventilation in an apartment of that kind" (i. e., like the toolroom with the doors almost "closed") "to produce death"; "when a man is overcome by gas he just gradually falls down and becomes limp, just like in a faint." There is testimony from other witnesses tending to show a much swifter process and a much more abrupt effect, violent pain, etc.

Malley knew of the dangers incident to "carbon monoxide gas," etc. Holcomb said he had told "every one" of his employees that "if they went in" the room "and closed the doors * * * you will never come out." Weeden said:

"I have discussed with Mr. Malley instances coming to my knowledge where men have been overcome with gas * * * I told * * * about a little case * * * where two couples in a Dodge touring car had got stuck in a mudhole and had to stay there all night and it was cold and the curtains were up; there was no way for them to keep warm and they ran the motor and they found them the next morning dead, with no gasoline in the tank. * * * I told * * * of that experience and * * * that it was really very poisonous."

Malley's "job" generally, and as it existed for some considerable time before May 14, 1926, was that of "watchman" and "oiler." On the night of May 14, 1926, duties assigned to him by Holcomb or Weeden, or in part by each, were: (a) "To patrol the entire beat and stay awake and watch the premises" —he was "left in charge of the premises." (b) Such as are imported by this testimony: "Mr. Malley's duties with reference to wetting down that dirt that night were these—we had a little old pump with a gasoline engine there, connected, and he used to get over there and start it up, and that was all that was necessary, and it would run then; to do that, in order to see he would have to let the light burn until he got all that started"; the pump engine was supposed to be started at about 9 o'clock. (c) To "oil" the "drag line" and get it "ready to run in the morning." (d) To store in the "toolhouse" such tools, etc., as he might discover on the premises while performing his other duties. (e) To "stop" the "gasoline engine" in the toolhouse and to "turn off the lights" there. There is testimony of Weeden indicating this should have been done about 9 o'clock p. m., but Weeden said, too, that it should have been done after Malley had started the pump and its engine, "oiled," etc., the "drag line" and "picked up tools." (f) "If it started raining," Weeden said, "I suppose it would be Mr. Malley's duty to close these doors" (i. e., doors of the "toolhouse"); he might do it or he might not; there were no specific instructions given * * * whether to close them or leave them open."

In respect to duties, authority, manner of performance of duties, etc., there is testimony that: (g) "It was left to Mr. Malley's judgment as to where he would station himself on the premises; he understood that." (h) "When a man is left in charge of premises as a night watchman" conditions might arise in respect to which "he would have to exercise his own judgment"—"nobody" was left "there to give him instructions concerning any condition that might arise." (i) "If there was downpour of rain a night watchman did not have to stay out in it"—"if nobody is there to tell him what to do he could do as he wanted to" in "sheltering himself on the premises," but, Holcomb said, "he never did, by implication, give Mr. Malley, rain or shine, authority to seek shelter or go into some place and sit down and rest."

Touching entry of the "portable toolhouse," there is testimony: (j) From Holcomb: "I did not employ him to go in the toolhouse; I never knew that he was going into the toolhouse and he had no business in it; * * * as to whether he had any business in that toolhouse for anything—he shut off the motor was all; he would cut off the motor by walking up to the side of it and shove the button, or rather pull it on or shove it off, he had no business on the inside of that toolhouse at all; * * * Mr. Malley had been instructed by me to stay out of that toolhouse, all of the men had, * * * (and) to keep those doors open; * * * he was not supposed to go in the toolhouse or anywhere else and seek shelter and not carry on his duties as night watchman; * * * I told them to stay out of it—I had expressly told them to stay out of that toolhouse for the purpose of rest or sleep or shelter, * * * it was when we first went down there" (i. e., commenced work on the fill) "that I told every one of them not to go into the toolhouse, I told all the men `don't ever any of you boys go into that toolhouse for any reason when the motor is running'; I said `if the motor is on and you closed it up you will never come out,' that is, if they went in and closed...