Marathon Oil Co. v. Sterner
| Decision Date | 21 April 1982 |
| Docket Number | No. C-564,C-564 |
| Citation | 632 S.W.2d 571 |
| Parties | MARATHON OIL COMPANY, Petitioner, v. James E. STERNER, Respondent. |
| Court | Texas Supreme Court |
Evan B. Glick, Houston, Mills, Shirley, McMicken & Eckel, Ross Citti, Galveston, for petitioner.
Brown & Todd, Gordon E. Davenport, Jr., Alvin, for respondent.
James E. Sterner brought this suit against Marathon Oil Company to recover damages for personal injuries allegedly resulting from exposure to some unidentified gas while working on the Marathon premises. The primary issue before this court is whether the case was properly submitted to the jury on a res ipsa loquitur theory. The trial court found that there was some evidence of negligence and submitted the case to the jury on a res ipsa loquitur theory. The jury found for Sterner on four special issues 1, and the trial court rendered judgment for Sterner. The court of civil appeals affirmed. 624 S.W.2d 198. We reverse the judgment of the courts below and render judgment that Sterner take nothing.
Sterner brought suit against Marathon alleging specific acts of negligence and res ipsa loquitur. The trial court submitted the case to the jury on a res ipsa theory. Marathon objected to the jury instructions on the basis that there was no evidence that the instrumentality which caused the accident was under the control of Marathon or that Marathon was guilty of any negligence. Marathon did not object to the form of the instructions.
The jury found for Sterner on all issues and awarded damages of $25,000. Marathon filed a motion for judgment n. o. v. which was overruled by the trial court. The court then rendered judgment on the verdict for plaintiff Sterner. The court of civil appeals affirmed, holding that there was some evidence which would allow the jury to conclude that the accident was one that would not ordinarily happen absent negligence and that the instrumentality was under the control of Marathon.
Marathon asserts that there is no evidence to support the jury findings. In considering this contention, we must view the evidence in the light most favorable to the verdict, considering only the evidence and inferences that support the judgment. Sagebrush Sales Company v. Strauss, 605 S.W.2d 857 (Tex.1980).
In November 1975, Sterner was an employee of Morrison Construction Company. Morrison Construction had been hired by Marathon to perform a "turnaround" job at Marathon's plant in Galveston. A "turnaround" job is a procedure in which a plant shuts down one of its units or "vessels" for repair and maintenance work. The "vessels" involved in this particular turnaround were all stationary sealed towers used to process different gasses. On a turnaround job, Marathon is responsible for shutting down each vessel or unit and preparing it for work. The pipelines leading into the vessel are usually "blinded" and then purged with steam. "Blinding" is done by inserting a metal plate between the joints of a pipe to prevent any gas or chemical from passing through the pipe.
Before any person can enter a vessel, the vessel must have posted on it a safety permit issued by a Marathon safety engineer. The permit indicates that a Marathon safety engineer has checked the vessel with a gas "sniffer" to make sure that there is no gas in the unit. Each vessel has at least three or four manways or openings through which a person can enter the vessel to work. These manways are "sniffed" before every work shift and then are sealed and secured after the turnaround is completed.
On November 15, Sterner and a colleague, Charles Irvin Keeler, were working near the top of a vessel, sealing it after it had been cleaned and repaired. Sterner and Keeler would alternate going into the vessel to work, with one person working inside for approximately thirty minutes. The other person would stay outside as the "hold man." The hold man's job was to pass tools to the person inside and to get help in case of accident or illness.
At about 4:00 p. m., and before Sterner relieved him inside the vessel, Keeler noticed something that smelled like musk oil. Soon after, Sterner relieved Keeler and went into the vessel. Keeler did not mention the smell.
Sterner stated that five or ten minutes after he went into the vessel he noticed a "sour, rotten, musk oil" smell. He ignored it for a few seconds, but it became stronger. He said that he then developed a sudden and severe headache, started vomiting and lost control of his bowels. Keeler told Sterner to get out, and they both descended to the ground as quickly as possible. Sterner continued to vomit and Keeler vomited after they reached the ground. Sterner experienced headaches and diarrhea for approximately a week. Keeler was ill the next day but did not develop headaches or diarrhea.
Sterner's foreman immediately brought Jack May, Marathon's safety engineer, to check the vessel for gas. Sterner testified that he heard May say that there was something in the unit and that he did not want anyone else back in the vessel until it could be checked properly. May testified that he then used a "sniffer" to check the vessel, but that he found no trace of gas. The vessel was apparently reopened for work an hour later.
May suggested that Sterner and Keeler go to the doctor that day. Keeler never went to see a doctor, but Sterner saw his doctor the next day. That doctor did not testify at the trial. Over the next few years, Sterner went to see at least two other doctors about his condition. He complained of difficulty in breathing, trouble doing the strenuous labor required by his job, post-nasal drainage, high blood pressure and headaches.
Dr. Zionts, who examined Sterner two years after the accident, testified that the chronic lung problems were due to...
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