Morton Salt Co. v. Wells

• Decision Date: 14 March 1934
• Docket Number: No. 6127.,6127.
• Parties: MORTON SALT CO. v. WELLS et al.
• Court: Texas Supreme Court

70 S.W.2d 409

MORTON SALT CO. v. WELLS et al.

No. 6127.

Supreme Court of Texas.

March 14, 1934.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Nora Wells and others against the Morton Salt Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [35 S.W.(2d) 454], and defendant brings error.

Judgments of the Court of Civil Appeals and the District Court affirmed.

See, also, Fort Worth Elevators Co. v. Russell, 70 S.W.(2d) 397; Southwestern Gas & Electric Co. v. Stanley, 70 S.W.(2d) 413.

Harry P. Lawther, Shelby S. Cox, Wm. M. Cramer, James P. Swift, and Owen H. George, all of Dallas, and Earl M. Greer, of Wills Point, for plaintiff in error.

Crawford & Fletcher, of Grand Saline, and Jones & Jones, of Mineola, for defendants in error.

CURETON, Chief Justice.

This is a suit for exemplary damages brought by the defendants in error, Nora Wells and children, against the plaintiff in error, Morton Salt Company, for the death of the husband and father, Arthur Wells, due, it is claimed, to the gross negligence of the company. Arthur Wells, at the time of his death, was in the employ of the salt company at its salt works in Grand Saline, Van Zandt county. The company carried workmen's compensation insurance, and the defendants in error were awarded, and received, the statutory amount from the insurance carrier. Only exemplary damages for death due to "gross neglect," provided for in section 26, art. 16, of the Constitution, are involved in this action. Judgment was rendered for the defendants in error by the trial court, and upon appeal the case was affirmed by the Court of Civil Appeals. 35 S.W.(2d) 454, 455.

We agree with the Court of Civil Appeals that the district court had original jurisdiction, without the presentation of the claim for exemplary damages to the Industrial Accident Board. The cause of action here asserted is one given by the Constitution, and the Legislature was without power to add to or take from the conditions under which, by virtue of the Constitution, it could be maintained, nor did it attempt to do so. Fort Worth Elevators Co. v. Russell, 70 S.W.(2d) 397, this day decided by this court. The material facts are thus summarized by the Court of Civil Appeals in its opinion:

"The material facts are these: Defendant collected bulk salt in a large room at its plant at Grand Saline, Tex., which was later dug out by a machine called `the digger,' transferred through a hopper to a buggy or cart, and conveyed to the drier. The digger machine was covered with metal, stood on three wheels, was operated by an electric motor, the current for such purpose being transmitted by cable of copper wires incased in rubber, about 40 feet in length, extending from the top of the building and entering the machine through an iron tubing 18 inches to 2 feet in length, the movements of the machine being directed and controlled exclusively by uninsulated metal levers. At the time Wells was killed, the machine had been in use several years, was worn, had developed considerable vibration, in damp weather would become so charged with electricity as to shock and sting on being touched. The cable had been used since 1926, its insulation in places had become worn, and several weeks prior to the accident the rubber casing at the point where it entered the machine caught fire and burned about 3 feet. The evidence justifies the conclusion that, on reasonable inspection by one possessing knowledge of electricity, the condition of the cable, its insulation, the coils of the motor, and the machine, would have been disclosed, but that such inspection was not given. The levers could have been handled with safety had they been properly insulated, or the machine could have been equipped with grass rope instead of metal levers, and operated with safety. There was no device in use to indicate when the machine was charged, or to automatically stop its operation when in such condition, although such devices could have been installed. Wells was shocked and knocked down, while operating the digger machine, the day before being killed, and on this fact being reported, the matter was referred to a Mr. Guinn, defendant's employee in charge of all of the electrical problems of the plant, who took the motor out, kept it several hours, reinstalled it the same afternoon, stating at the time that it had been repaired. After the motor was reinstalled, the machine was operated by the night shift and for a short while next morning, without unusual incident, until Wells was shocked and killed while in the act of handling a lever in the operation of the machine."

In addition to this summary, which is a very conservative statement of the record, we will say that the superintendent of the company's plant some time prior to the death of Wells, and its superintendent at the time of his death, as well as the acting superintendent at that time, all knew of the dangerous condition of the machine which killed him.

Upon the trial, the court submitted questions touching the company's gross negligence, and the jury found that it was guilty of gross negligence:

(a) "In causing to be maintained and used in their plant a machine which was worn and dilapidated";

(b) "In reference to the manner in which the electric wires attached to the machine in question, and as to their insulation";

(c) "In regard to its failure to have levers attached to the machine in question insulated";

(d) "In regard to its failure to have an automatic light bulb or fuse-block attached to the wires connecting the machine in question."

The Court of Civil Appeals found that the facts sustained the verdict of the jury, and with that conclusion we are in accord. The plain facts are that for years the company provided for the use of its employees a dangerous machine; and although its infirmities increased with use and age, efforts to render it safe, if any were made, were but of the slightest character.

We, of course, subscribe to the doctrine that a corporation usually cannot be held liable in exemplary damages for the gross negligence of its ordinary employees performing ordinary delegable duties. But we have no such case before us. The duty of a master to exercise ordinary care to provide his servants with reasonably safe appliances and instrumentalities with which to perform their duties, is an absolute and continuing duty, and cannot be delegated in such a way as to relieve the master from liability. It was the nondelegable or absolute duty of the company in this case to exercise ordinary care to provide Arthur Wells with a reasonably safe machine with which to do his work, and by inspection and repair to keep it in that condition.

On this question the Court of Civil Appeals in its opinion correctly said:

"Applying the rule to the facts under consideration, we encounter no trouble in reaching the conclusion that defendant was liable for the gross negligence of its electrician, Mr. Guinn. Furthermore, the cumulative effect of the findings of the jury is that defendant was guilty of gross negligence in failing to discharge the nondelegable duty imposed by law upon it as master to furnish Wells, its servant, with safe, suitable appliances and instrumentalities for the work in hand. This duty was a continuing one and included that of adequate inspection,...