Producers Chemical Co. v. McKay
| Decision Date | 20 February 1963 |
| Docket Number | No. A-8573,A-8573 |
| Citation | 366 S.W.2d 220 |
| Parties | PRODUCERS CHEMICAL COMPANY v. T. H. McKAY et al. |
| Court | Texas Supreme Court |
Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioner.
Merchant, Fitzjarrald, Poole & Merchant, J. Hadley Edgar, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for respondents.
In their separate suits for damages for personal injuries, consolidated for trial, T. H. McKay and T. U. Adkins recovered judgments, based upon a jury verdict and following required remittiturs, of $34,786.66 and $21,011.70, respectively. The Court of Civil Appeals affirmed. 348 S.W.2d 91. We affirm the judgment of the Court of Civil Appeals.
McKay and Adkins were members of a drilling crew employed by Canadian River Drilling Company in drilling an oil and gas well. Their injuries resulted from an explosion which occurred at the site of the drilling project.
In the drilling operation Canadian River was utilizing a small compressor belonging to Well Completions of Denver, Colorado, in attempting to unload the hole. The small compressor proved inadequate to perform the needed service. H. F. Sears, who is president of Canadian River and was supervising the drilling operation, telephoned Producers and requested it to send its compressor for use. Producers responded by sending an Ingersoll-Rand compressor which had been furnished to Canadian River for use on several other occasions. The compressor was very old. Producers also sent McDonald, as operator of the compressor, and two helpers.
McDonald and his helpers placed the Ingersoll-Rand compressor in line between Well Completions' small compressor and the line leading to the metal stand pipe on the drilling rig floor and hooked it up to Canadian Rivers' mud line. Well Completions' compressor fed air to Producers' compressor at a maximum pressure of 120 pounds. After Producers' compressor was started and stopped twice because it was not registering any pressure, McDonald, after working on it and adding oils to various areas, including the Manzell oiler, started it a third time. This time it built up a steady pressure until it reached approximately 1,000 pounds. After thirty or forty minutes of continuous operation, the explosion occurred.
Producers' compressor ran for some ten or fifteen minutes the first time it was started, and for approximately thirty minutes the second time it was started. The compressor had a sufficient amount of oil when it was put in use, but after the second shut down McDonald discovered that about a pint of oil had escaped from the Manzell oiler and he replaced the oil. McDonald testified that the oil had gone up through the pistons and into the outlet line; that it had no place else to go.
An expert witness testified that in his opinion the explosion was caused by combining a hydrocarbon-oil-with air which was raised to a high temperature by compression. Producers' president, a graduate geologist from Texas Christian University, testified that when air compressed to a high temperature is combined with a hydrocarbon, such as oil, there should be an explosion of some type. He testified that he had the same knowledge on the day the compressor was furnished for use. However, there is no evidence that Producers' president knew that the compressor was to be used in an air drilling operation on the occasion in question. The operator, McDonald, did know it was to be used in that type of operation before it was installed and put into service.
Producers' first four points of error attack the judgment against it on the ground that the jury's answers to Special Issue No. 3, on which its liability must rest, have no support in the evidence. In these points and in the argument thereunder, Producers urges, in various ways, that there is no evidence that it was under a duty to Canadian Rivers' employees or that it breached a duty to them; that it supplied for use the very compressor requested by Sears; that the pumping of oil by the compressor was an inherent defect which was not a defect at all unless and until the compressor was used for pumping air. Producers objected to the court's charge to the jury because it did not submit issues on duty and breach of duty; and sought submission of issues inquiring whether Canadian River requested and Producers supplied the very compressor used and whether Producers used the compressor for the purpose and in the manner directed by Canadian River.
We have found it difficult to associate the arguments presented in the briefs of the parties with the pleaded theories of recovery and defense and with the special issues submitted to the jury.
Evidence adduced on the trial indicates three possible theories for imposing liability on Producers, viz.: 1. Supplying a defective chattel (compressor) for use by another (Canadian River). This theory, as related to the evidence in this case, is found in and governed by the rules laid down in § 388, Vol. 2, Restatement of the Law of Torts. 2. Supplying a defective chattel (compressor), directly or through a third person, to be used for the supplier's (Producers') own business purposes. This theory found in and governed by the rules laid down in § 392, Vol. 2, Restatement of the Law of Torts. In comment a, under § 392, it is said that the rules of the section apply to 'the tools and appliances which an employer furnishes to his servants to be used in performing the work which they are employed to do.' When, as here, a third person suffers injury as a result of the use by employees of a defective chattel supplied by the employer, the theory of § 392 can as well be stated as the using by the supplier, through its own employees, of a defective chattel for its own business purposes. 3. Negligence of its employees in the manner in which they operated the chattel (compressor) supplied for its own business purposes. This theory is simply the well known doctrine of respondeat superior. In saying that the three possible theories of liability are indicated, we are not to be understood as saying that all of them find legal support in the evidence
The plaintiffs' pleadings seem to predicate liability of Producers on the second and third theories noted above. They alleged that Producers, acting through its agents, servants and employees, was negligent 'in using an air compressor that was pumping oil,' and then alleged several specific negligent acts or omission in the manner of operating the compressor. The theory of using a defective chattel was not submitted to the jury and must be held to have been abandoned. Special issue inquiries with respect to three specific acts or omissions on the part of Producers' employees, with related issues of negligence and proximate cause, were submitted to the jury. Only Special Issue No. 3 was answered unfavorably to Preducers. In answer to that issue the jury found that E. S. McDonald or one of the employees of Producers 'permitted its compressor to pump oil into its outlet line at the time and place in question,' and that such act or omission was negligence and a proximate cause of the explosion. The issue, quite clearly, inquires only as to an act or omission in the operation of the compressor.
In spite of the fact that negligence in the manner of operating the compressor is the only theory on which liability could be imposed because that was the only theory of liability submitted to the jury, Producers' attack on the judgment on the ground that the jury's answers to the Special Issue No. 3 have no support in the evidence is based entirely and altogether on the absence of evidence to show a duty or breach of duty by Producers in supplying a defective compressor for Canadian Rivers' use or for use by its own employees. Moreover, plaintiffs meet the charge of lack of evidence to support the verdict by referring alone to evidence which bears on the question of supplying a defective compressor for use in the work to be done.
Negligent supplying of defective machinery and negligent operation of the machinery are separate and distinct legal concepts, requiring altogether different pleadings, proofs and findings. The Court of Civil Appeals' affirmance of the trial court's judgment is based on its holding that there is in the record evidence of probative force, factually sufficient, to support liability of Producers on the legal theory of supplying a defective compressor to do the work contemplated. Abstractly stated, that is a sound theory for imposing liability, Roosth & Genecov v. White, 152 Tex. 619, 262 S.W.2d 99, but, for the reasons above stated, it cannot be used as a basis for imposing liability in this case.
Inasmuch as affirmance of the trial court's judgment by the Court of Civil Appeals is based...
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