Marker v. Universal Oil Products Company

• Decision Date: 03 December 1957
• Docket Number: No. 5569.,5569.
• Citation: 250 F.2d 603
• Parties: Nellie Mae MARKER, Administratrix of the Estate of Donald Orvel Marker, Deceased, Appellant, v. UNIVERSAL OIL PRODUCTS COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

250 F.2d 603 (1957)

Nellie Mae MARKER, Administratrix of the Estate of Donald Orvel Marker, Deceased, Appellant, v. UNIVERSAL OIL PRODUCTS COMPANY, a corporation, Appellee.

No. 5569.

United States Court of Appeals Tenth Circuit.

December 3, 1957.

Jack B. Sellers, Drumright, Okl., and Thomas A. Wallace, Sapulpa, Okl. (Tom

Wallace, Sapulpa, Okl., was with them on the brief), for appellant.

R. D. Hudson, Tulsa, Okl. (Philip N. Landa and Chris L. Rhodes, Tulsa, Okl., were with him on the brief), for appellee.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Plaintiff-appellant is aggrieved by an order of the United States District Court for the Northern District of Oklahoma which directed a verdict against her claim of a cause of action arising under the Oklahoma wrongful death statute. Appellant is the administratrix of the estate of her husband, Donald Orvel Marker, who died by asphyxiation while engaged in the course of his employment with the Tidewater Associated Oil Company.¹ The facts upon which appellant would predicate legal responsibility for the tragedy upon the defendant Universal Oil Products Company, hereinafter Universal, are stipulated and determinative of whether or not a jury question was presented in the trial.

Prior to 1940, Universal developed and patented a petroleum refining process consisting of catalytic polymerization of more volatile petroleum hydro-carbons, and designed and engineered a refining apparatus known as a catalytic polymerization unit in which to utilize the patented process. On September 1, 1939, Universal licensed Tidewater to use the patented refining process at its refinery and furnished Tidewater with plans and specifications for the construction of the unit used in the process. Universal also furnished and sold to Tidewater for use in the process a catalyst combining phosphoric acid and diatomaceous earth in pellet form. The unit, constructed by Tidewater entirely in accord with the design furnished by Universal, consisted mainly of two vertical vessels or towers approximately 36 inches in inside diameter and approximately 26 feet in height, with an 18-inch manhead at the top and a 16-inch manhead at the bottom. The vessel served as container for the catalyst and had no other openings or side manways. The catalyst deposited in the towers was effective for its purpose for about three to six months; after that length of time it was necessary to dump the used catalyst, frequently seen glowing and smoking when exposed to the air, and recharge the vessels.

Universal and Tidewater both had engineering personnel present at the Tidewater refinery in 1940 and 1941 during the placing of the unit in initial operation and during the times the vessels were first recharged. At those times these engineers observed the following steps taken in charging or recharging a vessel with catalyst: The vessel was allowed to cool, then both top and bottom manheads opened and the used catalyst dumped. Then, the vessel was cleaned, the lower manhead was closed and a 400-pound drum of crushed firebrick was deposited in the vessel, then the vessel filled with the recharge of cold new or used catalyst to a depth of approximately two feet below the butterfly baffles, located at a mid-point in the towers. A man was then lowered into the vessel to level the bottom bed and raise the baffles into horizontal position where they were fixed by pins inserted by a second man outside the vessel and the same procedure followed in placing the top bed of cold new or used catalyst in the vessel.

The catalyst pellets, new or used, when cold, may be used in the process and create no danger of any kind. Hot catalyst, new or used, when exposed to air creates, as any fuel, carbon monoxide and, when confined, can cause to accumulate gas in lethal quantities. Between 1941, when Universal participated in the initial recharging of the vessels, and June 27, 1955, Universal had no notice or knowledge that hot catalyst was ever used by Tidewater in the recharging process and there is no evidence that Tidewater ever did so use hot catalyst. However, on the latter date the vessel was recharged with hot, used catalyst; decedent was lowered into the vessel to perform the function contemplated by the recharging procedure and was asphyxiated by the deadly carbon monoxide gas. He had no warning or conscious knowledge of his peril.

From this agreed factual background appellant ascribes negligence to Universal upon two prongs of legal duty asserting violation of its duty to decedent in that (a) the towers were negligently designed and not reasonably safe to those who must necessarily work with them in the manner intended and (b) no warning was given decedent by Universal of the danger of entering a vessel in which hot catalyst had been placed.

When decedent's plight was discovered, great difficulty was experienced in extricating him from the vessel. From this fact appellant argues that Universal had created an inherently dangerous instrument, defectively designed, and suggests that the vessel could have been made safe by the installation of manways in the side of the vessel.

Oklahoma, in accord with other courts since MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, has adopted the doctrine that where a manufacturer knows that an item manufactured by him will be imminently dangerous to persons using it in the manner which was intended by its construction, he owes a duty to all persons who may come in contact with it to see that it is safe. Crane Co. v. Sears, 168 Okl. 603, 35 P.2d 916. And it has been held that this doctrine applies with equal force to one whose unsafe design is the proximate cause of injury, Inman v. Binghamton Housing Authority, 1 A.D.2d 559, 152 N.Y.S.2d 79; Clemens v. Benzinger, 211 App.Div. 586, 207 N.Y.S. 539; cf. Sherman v. Miller Const. Co., 90 Ind. App. 462, 158 N.E. 255. But it must be noted that no structural or constructural defect is claimed to exist in the instant case. See Auten v. Livingston, 201 Okl. 467, 207 P.2d 256. Indeed, Universal did not build or service the unit nor was there a...