Monsanto Co. v. Milam

• Decision Date: 02 May 1973
• Docket Number: No. B--3426,B--3426
• Citation: 494 S.W.2d 534
• Parties: MONSANTO COMPANY, Petitioner, v. Victor U. MILAM, Respondent.
• Court: Texas Supreme Court

Page 534

494 S.W.2d 534

MONSANTO COMPANY, Petitioner, v. Victor U. MILAM, Respondent.

No. B--3426.

Supreme Court of Texas.

May 2, 1973.

Rehearing Denied June 6, 1973.

Butler, Binion, Rice, Cook & Knapp, Tom Alexander and Robert C. Floyd, Houston, for petitioner.

Helm, Jones & Pletcher, David H. Burrow and Michael A. Moriarty, Houston, for respondent.

DANIEL, Justice.

In this personal injury action by Victor U. Milam, plaintiff, against Monsanto Company and one of its employees, Herbert Hutson, the plaintiff specifically alleged that his serious burns and injuries occurred because 'Herbert Hutson acting in the course of his employment for the defendant, Monsanto Company, carelessly and negligently permitted highly volatile gases to escape' into the area where plaintiff was working. This was the only specific act of negligence alleged against the defendants. It was followed by a general allegation: 'The incident made the basis of this suit was proximately caused by the negligence of the defendants.'

The jury answered 'no' to the question of whether Herbert Hutson permitted gas to escape as alleged by plaintiff, but it answered 'yes' to ten other questions inquiring whether Monsanto was negligent with regard to acts or omissions which were not specifically pleaded. Judgment was rendered for plaintiff against defendant Monsanto, but not against defendant Hutson, in the amount of $83,750.00. Monsanto appealed and the Court of Civil Appeals affirmed. 480 S.W.2d 259.

The principal issues before us are whether plaintiff's pleadings were sufficient to support a judgment based on the jury's findings of negligence on the part of Monsanto, and if not, whether Monsanto's objections to submission of the special issues were sufficient under Rule 274. ¹ The Court of Civil Appeals held that plaintiff's pleadings were deficient but that Monsanto's objections to the issues did not distinctly point out the defects. We agree and affirm.

The facts are detailed in the opinion of the Court of Civil Appeals. On March 15, 1966, plaintiff Milam suffered second-degree burns over approximately 15% Of his body due to an explosion and fire at Monsanto's Chocolate Bayou Plant. The portion of plaintiff's petition alleging the basis of the defendants' liability was in the following language:

'At the time of the occurrence of March 15, 1966, at or about the hour of 7:30 o'clock p.m., out of which this suit arises, your plaintiff was working in the course and scope of his employment for A. A. Pruitt Contractor, at Monsanto's Chocolate Bayou Plant, located approximately twelve miles south of Alvin, in Brazoria County, Texas. Defendant, Herbert Hutson, acting in the course and scope of his employment for the defendant, Monsanto Company, carelessly and negligently permitted highly volitale (sic) gases to escape into the area where plaintiff and his fellow employees were working, thereby causing an explosion and fire inflicting serious and painful injuries and burns to various parts of plaintiff's body. The incident made the basis of this suit was proximately caused by the negligence of the defendants.'

The defendants did not except to this pleading. Neither did they object to most of the evidence which tended to show that Monsanto employees other than Hutson were involved in and responsible for the acts or omissions inquired about in the first ten special issues. These ten issues inquired whether 'the defendant, Monsanto Company' (1) issued a fire permit to the A. A. Pruitt employees, authorizing work with a cherry picker crane, at a time when an ordinary prudent person, in the exercise of ordinary care, . . . would not have issued same; (2) untimely tested the 19 PIC--5 valve; (3) failed to stop the work being performed by plaintiff's crew before testing the value; and (4) failed to warn plaintiff that they were going to test the valve; whether either of the latter two 'failures,' if any, 'was negligence'; and whether either of the enumerated acts or omissions was a 'proximate cause of the occurrence made the basis of this suit.' All of these first ten issues were answered in the affirmative. There was evidence, unobjected to by defendants, which reasonably support such answers.

Special Issue No. 11, the only one which made an inquiry in substantially the language of plaintiff's pleading, was submitted as follows:

'Do you find from a preponderance of the evidence that at the time of and on the occasion in question the defendant, Herbert Hudson, (sic) permitted gas to escape into the area where plaintiff was working?'

That issue was answered in the negative. The defendants objected to this and each of the first ten issues on the basis, among numerous others, that there was no pleading by plaintiff to support its submission. The plaintiff did not file, nor request permission to file, a trial amendment under Rule 67. Defendants' objections were overruled.

We agree with the Court of Civil Appeals that plaintiff's pleading that defendant Hutson negligently permitted the gas to escape was a specific allegation of negligence on the part of Hutson and on the part of Monsanto through its employee, Hutson. We construe the general allegation that the 'incident made the basis of this suit was proximately caused by the negligence of the defendants' as referable to and controlled by the preceding specific allegation. The specific allegation controls over the general allegation. See Universal Atlas Cement Company v. Oswald, 138 Tex. 159, 157 S.W.2d 636 (1941); Rankin v. Nash-Texas Company, 129 Tex. 396, 105 S.W.2d 195 (1937); Weingartens, Inc. v. Price, 461 S.W.2d 260 (Tex.Civ.App.1970, writ ref. n.r.e.). For the same rule in workmen's compensation and other cases, see Matthews v. General Accident Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251 (1961); Harkey v. Texas Employers' Ins. Ass'n., 146 Tex. 504, 208 S.W.2d 919 (1948); and Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50 (1894).

Since Monsanto neither excepted to the petition nor objected to proof of acts or omissions not specifically pleaded but inquired about in the first ten issues, this brings us to the question of whether Monsanto complied with Rule 274 in making its objections to the submission of such issues. Rule 274 provides in part as follows:

'A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections. Where the objection made by the complaining party, or an instruction, issue, definition, or explanatory instruction requested by him, is in the opinion of the appellate court obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable.'

Monsanto made over 150 objections covering 42 pages of the transcript. To each of the negligence and proximate cause issues,...