Mobil Chemical Co. v. Bell, No. B--4447

• Court: Supreme Court of Texas
• Writing for the Court: McGEE; Concurring opinion by DANIEL; DANIEL
• Citation: 517 S.W.2d 245
• Parties: MOBIL CHEMICAL COMPANY, Petitioner, v. Edward L. BELL et al., Respondents.
• Docket Number: No. B--4447
• Decision Date: 11 December 1974

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517 S.W.2d 245 MOBIL CHEMICAL COMPANY, Petitioner,
v.
Edward L. BELL et al., Respondents. No. B--4447. Supreme Court of Texas. Dec. 11, 1974.
Rehearing Denied Jan. 15, 1975.

Orgain, Bell & Tucker, Cleve Bachman and Zollie Carl Steakley, Beaumont, for petitioner.

Waldman & Smallwood, Carl Waldman and William Hays Seele, Beaumont, for respondents.

McGEE, Justice.

This is a common law damage suit for personal injuries sustained by Edward L. Bell and J. A. Hurley, employees of an independent contractor constructing a large chemical plant for Mobil Chemical Company, when acetic acid escaped from a portion of the plant already completed and turned over to Mobil. A jury failed to find that Mobil was guilty of specific acts of negligence but answered Res ipsa loquitur issues favorably to the plaintiffs. ¹ Based on these findings, judgment was entered that each plaintiff recover $12,000 from Mobil. The court of civil appeals has held, Inter alia, that the Res ipsa theory was improperly submitted to the jury and has reversed and remanded for a new trial. 502 S.W.2d 564. We disapprove of the holding of the court of civil appeals with respect to submission of Res ipsa cases but find ourselves compelled to affirm the judgment of remand since plaintiffs have not sought relief from the remand by applying for a writ of error.

As in any Res ipsa case, the particular facts surrounding the event are extremely important. This case involves a plant being constructed to manufacture terephthalic acid (TPA). The plant basically consists of two units, designated Unit A and Unit B, of identical design with several common vessels which make them interrelated. Each unit is designed to produce TPA in a two step process. First, paraxylene is oxidized in the oxidation section to form crude TPA, a solid precipitate. Then this precipitate is mixed into a slurry with an acetic acid carrier and pumped to the leach section where the TPA is purified by a heating process. This entire operation is conducted under varying degrees of pressure. The area where the highest pressure is expected is the feed line leading to the leach section where normal operating pressures vary from 425 to 650 pounds per square inch (p.s.i.).

At this point a pressure relief mechanism is included to protect the system from pressure surges that may occur during operation. Since this lawsuit arose from a

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failure of this mechanism, a fairly detailed description is necessary. A simplified diagram of the pressure relief mechanism is reproduced below.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The feed line is three or four inches in diameter. From this a one inch pipe leads up to a relief valve, which is designed to upon when the pressure exceeds 850 p.s.i. and relieve the pressure by allowing some of the fluid to escape into a larger pipe from which it eventually returns to the feed line. Since the feed line normally carries a slurry, there is a danger of the solid matter in the slurry accumulating in and clogging the relief valve mechanism. To prevent this the one inch pipe leading to the relief valve contains a rupture disc blocking access to the relief valve. Under normal operations this disc will prevent the slurry from entering the pressure relief mechanism. However, if a pressure surge exceeds 850 p.s.i. the disc is designed to rupture, allowing the slurry to travel up the one inch pipe to the relief valve, which relieves the pressure. As an additional precaution, a second rupture disc is inserted in the one inch pipe a short distance above the first one and serves the same purpose as the first.

A pressure gauge is attached between the two discs to serve as a 'tattletale' and tell operating personnel that the discs have been reptured. The attachment is made by means of quarter inch pipe which runs horizontally from the one inch pipe to a valve (Valve A) and then on to a vertical 'T' connection. On the top opening of the 'T' a 0--1,000 p.s.i. pressure gauge is inserted and the bottom opening has a bleeder valve which is kept closed except to drain fluid from the gauge. During normal operations Valve A is kept open and the pressure gauge reads 0 p.s.i. since the lower rupture disc keeps the pressurized slurry out of the relief mechanism. However, if the pressure exceeds 850 p.s.i., the disc ruptures, the slurry comes into the relief mechanism, and the pressure gauge registers a positive reading, informing operating personnel that the discs should be replaced before the relief valve becomes clogged.

Mobil Chemical Company had contracted the design and construction of the plant to an independent contractor, C. F. Braun and Company. As each section of the plant was completed, it was tested and turned over to Mobil. By March 21, 1966 C. F. Braun had completed all of Unit A and conducted a hydrostatic test under the supervision of Mobil. The hydrostatic test consisted of filling the system with water

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under pressure substantially above operating level to check for leaks. Unit A passed this test and was accepted by Mobil. Mobil also conducted a visual inspection of the entire system and was satisfied that the Unit was assembled properly and that all equipment was in place. Mobil then began the process of 'commissioning' the Unit. This consisted of operating the equipment first with water and later with acetic acid, but without actually producing TPA.

Shortly after noon on April 4, 1966 a pressure surge caused the pressure in the feed line to exceed 850 p.s.i. At this time the pressure relief mechanism worked perfectly--the discs ruptured, the relief valve relieved the pressure, and the pressure gauge indicated that the discs were ruptured. Mobil maintenance personnel then replaced the discs, bled the acetic acid out of the relief mechanism, and continued the commissioning process. Just before 5:00 P.M., April 5, 1966 the feed line was again overpressured. This time, however, the pressure relief mechanism failed and acetic acid under high pressure spurted out of the quarter inch pipe and into the atmosphere, creating both a danger to personnel and a fire hazard. As soon as he realized where the leak was, Jerry Griffith, Mobil's process superintendent, put on protective equipment, crawled out on the feed line and stopped the leak by closing Valve A.

Plaintiffs Bell and Hurley were employees of C. F. Braun and were working on Unit B of the plant at a point some 70 feet from the rupture. Both were exposed to strong acetic acid vapor and suffered respiratory damage for which they seek recovery. They alleged specific acts of negligence in failing to either have the pressure gauge in place or close Valve A and in the alternative pleaded Res ipsa loquitur. The jury failed to find that the specific acts of negligence were committed and these findings have not been attacked on appeal. The jury did find, however, that Mobil failed to use ordinary care in maintaining the plant and that such failure was a proximate cause of the incident in question. The district court overruled Mobil's motion for judgment non obstante veredicto and entered judgment for plaintiffs.

The court of civil appeals agreed that the facts of the case raise the doctrine of Res ipsa loquitur but concluded that in Res ipsa cases where there is evidence of causes other than the defendant's negligence, the jury should be asked if it finds from a preponderance of the evidence that:

'1. The character and circumstance of the accident is such as to lend reasonably to the belief that, without negligence, it would not have occurred.

'2. The thing that caused the injury is shown to have been under the management and control of the defendant.

'3. It is more reasonably probable that the accident was caused by defendant's negligence than not.' 502 S.W.2d 567--568.

We granted writ of error in this case to examine the method of submitting a Res ipsa loquitur case to the jury. We conclude that the formulation suggested by the court of civil appeals is not proper since it confuses the roles of judge and jury.

Before discussing the method of submission, it is helpful to focus on exactly what is encompassed within the doctrine of Res ipsa loquitur. The phrase, meaning 'the thing speaks for itself,' was used by Pollock, C.B., in discussing a barrel of flour which fell from the defendant's window, Byrne v. Beadle, 2 H. & C. 722, 159 Eng.Rep. 299 (Ex.1863), and has come to signify that in certain limited types of cases the circumstances surrounding an accident constitute sufficient circumstantial evidence of the defendant's negligence to support such a fact finding. See Morris, Res Ipsa Loquitur in Texas, 26 Texas L.Rev. 257 (1948). These cases are those in which the circumstances surrounding the event are such that the mere occurrence of the accident supports reasonable inferences that there was negligence involved and

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that the defendant was the negligent party. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935); W. Prosser, Law of Torts § 39 at 211--214 (4th ed. 1971).

The Res ipsa doctrine is applicable when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Owen v. Brown, 447 S.W.2d 883 (Tex.1969); Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex.1965); McCray v. Galveston, H. & S.A. Ry. Co.,89 Tex. 168, 34 S.W. 95 (1896); 2 F. Harper & F. James, The Law of Torts § 19.5 (1956); W. Prosser, supra at 214. The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party. See Bond v. Otis Elevator Co., supra. As such the 'control' requirement is not a rigid rule that the instrumentality must have always been in the defendant's...