McAfee v. Travis Gas Corporation

• Decision Date: 04 June 1941
• Docket Number: No. 7646.,7646.
• Parties: McAFEE et al. v. TRAVIS GAS CORPORATION et al.
• Court: Texas Supreme Court

153 S.W.2d 442

McAFEE et al. v. TRAVIS GAS CORPORATION et al.

No. 7646.

Supreme Court of Texas.

June 4, 1941.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of the Fourth Supreme Judicial District.

Suit by Seldon E. McAfee against the Travis Gas Corporation and others for personal injuries, wherein the Texas Employers' Insurance Association intervened. Judgment for defendants was affirmed by the Court of Civil Appeals, 131 S.W.2d 139, and plaintiff and intervener bring error.

Reversed as to named defendant and remanded with instructions; affirmed as to other defendants.

J. M. Wilson and Albert W. Searcy, both of Corpus Christi, for plaintiff in error McAfee.

Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for Texas Employers Ins. Ass'n.

Coleman Gay, of Austin, D. S. Purl and T. H. Burruss, both of Corpus Christi, for defendants in error.

CRITZ, Justice.

This suit was filed in the District Court of Nueces County, Texas, by Seldon E. McAfee against Travis Gas Corporation, D. C. Reed, E. H. Perry, and the copartnership of Reed & Perry to recover damages for personal injuries alleged to have been received by McAfee as the result of the negligence of the defendants, and each of them. McAfee was injured as the result of a gas explosion. At the time of his injury McAfee was an employee of Federal Petroleum Company. Such employer carried workmen's compensation insurance with the Texas Employers' Insurance Association. This insurer paid McAfee $1,777.08 compensation, and, as provided for by our Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., intervened in this suit and asked to be reimbursed out of any recovery awarded McAfee to the extent of the compensation it had paid to him.

The case was finally tried in the district court, with the aid of a jury. At the close of the evidence all defendants above named filed separate motions for an instructed verdict. The court sustained the motions of D. C. Reed, E. H. Perry, and the firm of Reed & Perry, and so instructed the jury. The jury returned the verdict as directed.

After the above events the court submitted the case as against Travis Gas Corporation to the jury on special issues. The findings of the jury are fully detailed in the opinion of the Court of Civil Appeals. In the interest of brevity we will not repeat them here. It is sufficient to say that such findings would entitle the plaintiff to a judgment against Travis Gas Corporation unless there is some reason why they should not be given effect.

After the above-mentioned verdict was returned into court, Travis Gas Corporation filed a motion for judgment non obstante veredicto. Such motion was heard and granted by the court. As a result of all the above proceedings the court entered a final judgment against McAfee, and for all of the defendants above named. On appeal to the Court of Civil Appeals by McAfee and Texas Employers' Insurance Association, the judgment of the district court was affirmed. 131 S.W.2d 139. McAfee and the insurance association bring error.

Under the record above detailed, we must regard the evidence contained in this record in its most favorable light for McAfee. This is because of the instructed verdict and judgment non obstante veredicto above detailed.

At this point we deem it necessary to revert to and detail the facts as established by this record. At the time of this accident McAfee was an employee of Federal Petroleum Company. A gas line belonging to Travis Gas Corporation ran along the edge of the premises of Federal Petroleum Company. Such gas line connected with a gas well belonging to D. C. Reed and E. H. Perry. The gas line was used for the purpose of conducting gas to various customers of Travis Gas Corporation. One of such customers seems to have been Federal Petroleum Company. It appears that this gas line was in bad condition, and had been leaking gas from openings therein for many months. The owner had notice thereof. The gas was leaking into the open air. Some of these leaks were in the portion of the pipe line running alongside the premises of Federal Petroleum Company. On the day McAfee was injured one Joe Woods appeared on the premises where McAfee was employed and said something to him. McAfee then went with Woods to where the pipe line was leaking and was in the act of pointing out such leaks to Woods when Woods struck a match on the sole of his shoe to light a cigarette. The blaze from the match ignited the escaping gas, causing an explosion. As a result of such explosion McAfee was injured. This suit followed.

It appears that the gas pipe line involved in this case ran along the north line of the warehouse of the Federal Petroleum Company, but we are not sure whether or not it ran across the premises of Federal Petroleum Company. It is established, however, that the pipe line was approximately on the line of Federal Petroleum Company's premises, and the leaking gas escaped into the air over such premises. When Joe Woods appeared on the premises of Federal Petroleum Company where McAfee was working, he said something to McAfee and the two went together to where the leaks in the pipe line were. Woods had previously been on the premises of Federal Petroleum Company on several occasions "Either to collect or to look for something about that line." There is ample evidence to show that the pipe line owner or operator had notice of the bad condition of the pipe line. We gather from the testimony of J. G. McIntosh that at the time of this accident he was general superintendent for all of defendants in error. He testified that he had succeeded Mr. John Bartlett in that capacity about ten days or two weeks before this accident. McIntosh had charge of the operation of both the gas well and the pipe line above mentioned. Woods was working at the well when McIntosh took charge. When McIntosh took over, as above stated, he countermanded no instructions which Bartlett may have given Woods. McIntosh, however, did give Woods definite instructions. He had instructed Woods to stay at the well. Woods was supposed to be at the well during the daytime, and he was to receive reports of leaks in the pipe line. Woods was supposed to close off the line in case of an emergency, and a leak might be an emergency.

From all the above facts we think there is probative evidence in this record tending to show that in inspecting this leaky pipe line on the occasion of McAfee's injuries, Joe Woods was acting as the agent or servant of the owner or operator of this pipe line. The evidence we have recited certainly tends to show that he, Woods, was performing a service for such owner or operator. It is the settled law of this State that, in a negligence action, in which the defendant's liability to the plaintiff depends upon proof of master and servant relationship between the defendant and a third person, such relationship is prima facie established by showing that the alleged servant was performing services peculiar to the defendant's business or affairs on or about the latter's property. 29 Tex.Jur., p. 410, § 241; Hozian v. Crucible Steel Co., 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333, and annotation, page 337; Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W. 2d 416. We here refer to the authorities cited in the Ochoa case, supra, 94 S.W.2d page 418. It follows that in this case we have McAfee pointing out the leaks in this gas line to an agent or servant of the owner, when such agent or servant struck a match which ignited the escaping gas, causing an explosion which injured McAfee.

McAfee testified as a witness in his own behalf. Reduced to narrative form, his testimony, in substance, is as follows: That he walked with Woods to where the gas leaks in the pipe line were; that such line had been leaking gas for two years; that they (we) did everything but fix such leaks; that they (we) naturally considered such leaks very dangerous; that he thought something like this explosion might happen, with natural gas shooting up all around the place; that he anticipated an explosion was liable to happen; that he knew this at the time he went to this pipe line with Joe Woods; that he felt obligated to his company to do what he did in showing these leaks to Woods; that he did not know that the thing which happened was going to happen, or he would not have gone there; that he realized for two years that there was a dangerous condition there, and in spite of that he voluntarily went out and exposed himself to such danger.

As to the effect of the above testimony, the Court of Civil Appeals holds :

"Appellant argues that he, as a reasonably prudent man, could not be expected to foresee that Joe Woods, a man employed at the gas well, and who, according to his own statement, came to investigate the leaks, would be so thoughtless as to strike a match near the ground in the proximity of the gas leaks at the very moment that appellant was leaning down with his face near the ground pointing out the leak. The answer to this contention is that the operators of the gas line are in law not presumed to be any more prudent than McAfee is, and if he was unable by the use of ordinary care to foresee that Joe Woods was going to be guilty of such an unexpected act, then by the same token the operators of the gas line could not be expected by the use of ordinary care to foresee that Woods was going to so conduct himself. Either the appellee was not guilty of negligence proximately causing the injuries to appellant, or appellant was guilty of negligence proximately causing his own injuries. It is not necessary to here decide which, as appellant could not recover in either event."

Further in the opinion of the Court of Civil Appeals it is said: "If the proof had shown that Joe Woods was the agent of the operator of the gas line and acting in the course of his employment, quite a different case would have been presented."

Under the record we have...