Mansfield v. Union-76-Division of Union Oil Co. of California, UNION-76-DIVISION

• Decision Date: 28 May 1976
• Docket Number: No. 74-4212,UNION-76-DIVISION,74-4212
• Citation: 532 F.2d 446
• Parties: Rachel MANSFIELD et al., Plaintiffs-Appellees, v.OF UNION OIL COMPANY OF CALIFORNIA, Defendant-Appellant, v. AMERICAN MOTORISTS INSURANCE COMPANY, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 446

532 F.2d 446

Rachel MANSFIELD et al., Plaintiffs-Appellees, v. UNION-76-DIVISION OF UNION OIL COMPANY OF CALIFORNIA, Defendant-Appellant, v. AMERICAN MOTORISTS INSURANCE COMPANY, Intervenor-Appellee.

No. 74-4212.

United States Court of Appeals, Fifth Circuit.

May 28, 1976.

Cleve Bachman, Beaumont, Tex., for defendant-appellant.

Alto v. Watson, Beaumont, Tex., for Rachel Mansfield.

Wm. R. Powell, Houston, Tex., for American Motorists Ins. Co.

Appeal from the United States District Court for the Eastern District of Texas.

Before TUTTLE, THORNBERRY and TJOFLAT, Circuit Judges.

TUTTLE, Circuit Judge:

In this Texas diversity wrongful death action, we are required once more to consider the extent to which the Delhi-Taylor doctrine, Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967) is fatal to a negligence action on behalf of an injured employee of a subcontractor. We have most recently discussed this principle in Gray v. Martindale Lumber Co., 515 F.2d 1218 (5th Cir. 1975) and Miles v. Shell Oil Co., 498 F.2d 105 (5th Cir. 1974).

Here, Union 76 appeals from a jury verdict in favor of the plaintiff, personal representative of the deceased employee, Mansfield, of an independent contractor who was doing construction work for Union 76 when he was killed in an accident that occurred while he was laying pipe under high tension wires on Union 76 property.

In order to determine whether the principle announced by the Texas Supreme Court in Delhi-Taylor should, as contended here by Union 76 be fatal to recovery in the district court, we sketch the facts which the jury was justified in finding: Union 76 had hired the independent contractor, Parsons, some months earlier to relocate the high tension wires in question and Parsons had subcontracted out this particular job. At the time of the accident here complained of, Parsons had been hired on a cost plus contract to construct a 36-inch pipeline to be placed on a trestle some 30 feet above the ground and which would at a point pass under the high voltage lines. The top of the trestle or scaffold upon which the 36-inch pipe was being installed and upon which Mansfield would stand in performing his duties, was less than 10 feet from the high tension wires at this point. The piping was installed without interference with the wires by having them welded at a point away from the high tension line and skidded along the top of the trestle by a derrick operating at a safe distance. However, after Mansfield had welded or placed a shoe under the pipe it was necessary for someone to get up on top of the pipe in order to release the cable by which it had been moved into position. What happened next can best be expressed in the language of an eye witness:

". . . (A)nd he stepped up on the end of the pipe and when he stepped up on the pipe he started to stand up and when he raised up I don't remember if he took one step or two steps or what, but I know when he raised up I heard it sounds similar to the blast of a shotgun, like a twelve gauge shotgun, something of that nature, and you could see fire come from this line to his head here and it was real quick, it happened real fast, and it done it again real loud, like maybe a hand grenade exploded, four times as loud as the first blast I heard, and I seen his cap fly off and his gloves fly off, he looked like he was stuck to the pipe with his heels, and all around him it looked like the best way I could describe it, to me, would be like a halo, a bright light all the way around the man, from the man to the wire and around the pipe, and I said, 'My God, get us down,' so I seen him, he fell off the side of the pipe and he hit the scaffold and I seen him fall back in the scaffold."

We continue with a recitation of the facts which the jury could find. The danger posed by the presence of a high voltage electric line (described in certain Texas statutes as any line carrying a voltage in excess of 600) lies not only in the possibility of actual contact by a human with the wires but also in the property of electricity of such voltage to create an arc of considerable magnitude in order to run to ground. High voltage electricity may arc at least three inches per 10,000 volts or approximately 10 inches with voltage of 34,500. The decedent, Mansfield, was killed without making actual contact with the high voltage wires when some parts of his body came close enough to cause the electricity to arc out and pass through his body to the ground. No agent of Union 76 had expressly warned Parsons, the contractor, who was Mansfield's employer, of the dangers inherent in working within 10 feet of this high tension wire. However, some of Parsons' employees, in a supervisory capacity over Mansfield, knew of the danger of working in the close proximity of such wires. Most of Mansfield's immediate superiors and fellow employees were unaware of the fact that the wires were energized or live, although Parsons did have such knowledge.

Appellant must assert its Delhi-Taylor claim based upon the foregoing recitation of facts which it was within the power of the jury to find. It is the appellant's contention that under the principle of that Texas authority, once it was proven that Parsons, the contractor for Union, knew of the danger of working within the close proximity of high tension wires this was sufficient to discharge its duty to warn the particular employee of the contractor of the threat which became an actuality and caused his death. Since the knowledge of the Parsons' employees was not shown to be anything other than a generalized knowledge of the danger of working in close proximity to high tension wires and there is no evidence that any of them was aware of the specific danger of electrocution without making actual contact with the wires we are of the opinion that appellant tries to take Delhi-Taylor too far.

In Delhi-Taylor the court had before it a case in which the owner/occupier had actually given a warning to the contractor who was the employer of the injured plaintiff. The court said:

"On the basis of the evidence set out, we hold that the warning given to Vickers and his foreman that the lines should be treated 'as though they were loaded,' when considered with their knowledge of the condition of the premises and the dangers inherent therein, was adequate to discharge Delhi-Taylor's duty to Vickers and his foreman. This holding brings us face to face with the question of whether an adequate warning to an independent contractor or one supervising his work will discharge the duty of the landowner or occupier to warn the employees of the independent contractor; and we hold it will."

416 S.W.2d at 393. The court then went on to say:

"While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to...