Sheffield Division, Armco Steel Corporation v. Jones

• Decision Date: 26 February 1964
• Docket Number: No. A-9748,A-9748
• Citation: 376 S.W.2d 825
• Parties: SHEFFIELD DIVISION, ARMCO STEEL CORPORATION, Petitioner, v. Mrs. Walter O. JONES, Jr., et al., Respondents.
• Court: Texas Supreme Court

Page 825

376 S.W.2d 825

SHEFFIELD DIVISION, ARMCO STEEL CORPORATION, Petitioner, v. Mrs. Walter O. JONES, Jr., et al., Respondents.

No. A-9748.

Supreme Court of Texas.

Feb. 26, 1964.

Rehearing Denied April 15, 1964.

Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, with above firm, Austin, Butler, Binion, Rice & Cook, James E. Crowther and W. N. Blanton, Jr., with above firm, Houston, for petitioner.

Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for respondents.

CULVER, Justice.

This suit was brought against Armco Steel Corporation and Robert McWhirter, its maintenance foreman, for exemplary damages as authorized by law where an employee's death is caused by homicide from the wilful act or omission or gross negligence of the employer at the time of the injury. ¹ Walter Jones, Jr., while in the scope of his employment with Armco Steel Corporation was killed as the result of an explosion in December, 1959. His beneficiaries were paid compensation as provided by the Workmen's Compensation Act.

The trial court entered judgment against Armco on the jury's findings of gross negligence but granted the non obstante veredicto motion of McWhirter and entered a take-nothing judgment as to him. The Court of Civil Appeals held that the evidence supported the finding of gross negligence as against Armco, but reversed the judgment on other grounds and remanded the cause to the trial court. It affirmed the take-nothing judgment as to McWhirter. 369 S.W.2d 71.

We have concluded that the evidence offered on the trial of this case does not support the finding of gross negligence on the part of the employer and reverse and here render judgment in favor of the petitioner, Armco Steel Corporation.

Armco operates a steel mill in Harris County composed of separate plants, one of which is the coke plant. Coal is there heated under pressure and processed into coke. The gas emitted from that operation enters a primary cooler that extracts the greater part of the tars from the gas and is then conducted through large pipes into precipitators. The precipitator involved, which may be termed a gas purifying machine, is a large metal tank connected with two small tanks commonly called 'ears,' one on each side. Electrodes are suspended inside the precipitator which are charged with electricity and cause the tar remaining in the gas to be solidified and attracted to the precipitator walls. A precipitator is about 35 feet high and 20 feet in diameter. There was one of a bank of three precipitators of similar design in the area where the employees were working. The precipitator No. 2 in which the explosion occurred was installed in 1956. The other two had been installed some years earlier. Under normal operations raw gas is piped into the precipitator and clean gas is piped into the ear compartment. The purpose of this is to create a pressure in the ears to keep out the raw gas which will foul the insulator. When insulators become dirty they will sometimes crack or break. On the precipitator there is a vent from which the steam will exit. After precipitator No. 2 was installed, from the beginning there was difficulty with respect to gas coming into the precipitator after the inlet valves had been closed. Every second or third time of working on the precipitators there would be an indication of gas. This situation existed over a period of years and was brought to the attention of Mr. McWhirter on several occasions. One of the motor inspectors testified that, based on his experience over the years, the reason the gate valves would not close was due to the accumulation of tar in the grooves in which the gate sets and it is not possible to purge all of the gas by the use of steam while gas is continuing to leak through the valve. Ordinarily the precipitators were cleaned by the motor inspectors about once a week. On such occasions the motor inspectors would disconnect the electricity lead and then the ears and the precipitators would be steamed to purge them of gas. The steam also served to dampen the carbon deposits which otherwise when exposed to the air had a tendency to smolder and blaze up. The by-products department was charged with the responsibility of closing the valves and shutting off the flow of gas into the precipitator and turning on the steam. When the steam was turned into the precipitator it would also pass into the ears. The fact that gas was present in the precipitator after it had been steamed was reported to the supervisors on many occasions. It was customary to resteam if the odor of gas was present and the motor inspectors had the right to call for this to be done. After the valves were closed and the steam had been applied the presence of gas could be fairly well discovered by looking at the steam. If it was not discolored the gas would have been cleared away.

On the morning of the explosion Mr. Jones, the deceased, and Mr. Phillips, both motor inspectors, were directed to check out precipitator No. 2. The electric current was shut off and the usual steaming operation conducted. Mr. McWhirter was told that gas was leaking into the precipitator and this fact was also reported to the by-products operator who had the valves checked to see if they were closed and the precipitator was resteamend. These two employees decided to clean the insulator in the east ear and then after the lunch hour to change the one in the west ear which appeared to be broken.

About one o'clock p. m., when they opened the door of the west ear, the odor of gas appeared to be about the same as it was in the morning. They did not call for the precipitator to be resteamed nor report that fact. They proceeded to clean out and remove the carbon deposits and after being engaged in that process for about 15 or 20 minutes the explosion occurred which resulted in the death of Jones and injuries to Phillips. Phillips testified that just prior to the explosion he saw sparks flash in front of him but he could offer no explanation as to what caused the sparks.

Mr. McWhirter and another foreman had from time to time assured the motor inspectors that the odor they smelled was not gas, but resulted from the fumed given off by the tar deposits and sometimes they used gas masks which were furnished by the company. No gas or explosion meters had ever been used in the area. After the explosion there was a flame coming out of the open gas line which was no longer connected to the left ear. This was the clean gas coming out of a gate valve which will not seal off the gas very long.

In this case the jury found that the valves to precipitator No. 2 were clogged with tar in sufficient amounts to render said valves defective in the use to which they were being put; that Armco failed to provide adequate valves to prevent gas from entering the precipitator No. 2 while work was being performed thereon; that there were inadequate venting facilities on precipitator No. 2, and that insulators on precipitator No. 2 were so located as to subject repairing motor inspectors to an unreasonable risk; and that all of these facts were known to foremen and supervisors and constituted gross negligence. So far as we note, the only defective or inadequate condition of the valves disclosed by the evidence was that prior to the accident in question tar gradually accumulated in the grooves making it increasingly difficult to completely close the valves.

(1) An expert testified that a plug valve would be best adaptable for service in the precipitator rather than the tongue and groove type. But this latter type had been used for a good many years and the fact that Armco could have obtained a better valve on the market and failed to do so would not alone show gross negligence. Similarly, the facts that on other precipitators the venting facilities were more adequate and that insulators were arranged so as to be more accessible would not be sufficient to convict Armco of gross negligence.

There is no question here as to the rule of law applicable to cases of this character where exemplary damages are sought. In one of the later expressions by this court, Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, we reaffirmed the definition stated in Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, namely that:

'Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.' (Emphasis added.)

Additionally the court quoted from 13 Tex.Jur., p. 241, § 133 as follows:

"In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree of 'gross negligence' which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms 'malice,' 'fraud,' 'oppression,' 'recklessness,' and the like. Regardless of the expression which is used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages."

(2) In the early case of Southern Cotton Press & Manufacturing Co. v. Bradley, 52 Tex. 587, the definition given by the trial court to the effect that gross negligence is a greater or a higher degree of negligence than ordinary negligence was held to be erroneous. The court went further to say that:

'Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise a presumption of a conscious indifference to consequences. Such indifference is morally criminal and if it leads to actual injury may well be regarded as criminal in law.'

Also that:

'A mere act of omission...