Sheffield Division Armco Steel Corp. v. Jones

• Decision Date: 02 May 1963
• Docket Number: No. 14080,14080
• Parties: SHEFFIELD DIVISION ARMCO STEEL CORPORATION, Appellant, v. Mrs. Walter O. JONES, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 71

369 S.W.2d 71

SHEFFIELD DIVISION ARMCO STEEL CORPORATION, Appellant, v. Mrs. Walter O. JONES, Jr., et al., Appellees.

No. 14080.

Court of Civil Appeals of Texas, Houston.

May 2, 1963.

Two Motions for Rehearing Denied June 20, 1963.

Jack Binion, James E. Crowther, W. N. Blanton, Jr., Edward Clark, J. Sam Winters, Mary Joe Carroll, Clark, Thomas, Harris, Denius & Winters, Austin, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant Sheffeld Division, Armco Steel Corporation and cross-appellee, Robert McWhirter.

Newton Gresham and Sam W. Cruse, Houston, amici curiae (In support of appellant).

J. Curtiss Brown, W. W. Watkins and W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.

COLEMAN, Justice.

This is a suit for exemplary damages growing out of an industrial accident authorized by Article 16, Sec. 26, of the Texas Constitution, Vernon's Ann.St. and Art. 8306, Sec. 5, Vernon's Annotated Texas Statutes.

Appellees are the survivors of Walter O. Jones, Jr., who was employed by appellant, Sheffield Division Armco Steel Corporation, as a motor inspector. Jones' death was caused by burns received while working. Appellant's liability for the death benefits provided by the Texas Workmen's Compensation Act was admitted and the prescribed payments have been and are being made.

Trial was to a jury which answered all issues in favor of appellees. Both appellant and its employee McWhirter were found guilty of acts of gross negligence proximately causing the accident. The jury found actual damages in the amount of $25,000.00 and assessed exemplary damages against appellant and McWhirter in the amount of $250,000.00. The trial court granted a motion for judgment non obstante veredicto as to McWhirter and entered judgment against appellant.

Appellant is engaged in the business of making steel. In the manufacturing process coke is required and it is produced in special furnaces by burning coal. Coke gas is drawn off as a by-product of this burning process. This gas is transported by means of large pipes to cooling areas and then to precipitators where some of the coal tars in the gas are removed by means of an electrical charge. The precipitators are located in what is known as the by-products area. Three precipitators performed the same function and were numbered 2, 3 and 4. After further procedures the gas is run through precipitator No. 5, which is of a different design. Precipitators 2, 3 and 4 were large tank-like structures approximately 35 feet high. The three were connected by a walkway some 12 to 15 feet above ground level. At the walkway level on the east and west sides of each precipitator were compartments, commonly called 'ears,' housing insulators and an 'I' beam. Electrodes are suspended inside of the precipitators from a bar which extends from the insulator in the east ear to the insulator in the west ear.

When the precipitators are in operation the coke gas flows in from a large inlet pipe and out through an outlet pipe of the same size. While it is in the precipitators the gas is subjected to a charge of some 73,000 volts of electricity which causes coal tar to be attracted to the electrodes and precipitator walls. The tar drains to the bottom and is removed. The precipitators are arranged in a battery and the gas can flow from one to the other through the outlet pipe. The inlet and outlet pipes are connected to the main body of the precipitators. Clean gas was piped into each of the ears for the purpose of maintaining a pressure designed to keep as much of the coke gas out of the ears as practical in order to minimize the coating of the ears and the insulators with coal tar and carbon. Carbon deposits build up in the ears and they were regularly cleaned by the motor inspectors. This cleaning process involved opening a small door accessible from the walkway, chipping the deposits loose, and then cleaning with rags saturated with highly inflammable light oil. On occasion the insulators would break and they were removed and replaced through the small door.

On the day of the accident Jones and Phillips, both experienced motor inspectors, undertook to clean the ears of precipitator No. 2. At about 8 o'clock in the morning Jones informed Bobby Walker, the by-products operator, of his intention. It was the duty of the by-products operator to have the inlet and outlet valves on the coke gas lines closed, to close the clean gas line, and to turn on the steam to purge all gas from the precipitator to be cleaned. The electricity had already been turned off by the motor inspectors. About 9 or 9:30 Phillips and Jones notified Walker to turn off the steam and then checked the ears, finding the insulator in the west ear broken and both ears dirty. They noticed the odor of gas and reported the fact to Walker, who turned the steam back on and ordered laborers to check the valves.

They then went to the work shop for their tools and Jones reported the broken insulator to McWhirter and told him they had smelled gas and had asked for a resteaming. McWhirter took no action on the report other than ordering a new insulator. They returned to the precipitator and spent an hour and ten or fifteen minutes scraping the carbon from the interior of the east ear and cleaning the insulator with the light oil. The carbon scrapings, damp from the steaming, were placed in an open bucket. When the work on the east ear was finished, they closed the door, took all of their equipment from the walkway and disposed of the carpon scrapings. They then went to lunch without requesting that the precipitator be steamed.

The motor inspectors returned to work at 1 o'clock and waited ten or fifteen minutes for the new insulator. When it arrived they spent fifteen or twenty minutes cleaning the west ear before they began installing the new insulator. The insulator weighed fifty or sixty pounds and some difficulty was always experienced in inserting it through the small door. Phillips was on his knees holding the insulator inside the door and Jones was standing behind him guiding it into position when the explosion happened. Jones and Phillips were both burned and jumped or fell from the walkway to the ground. Another employee, who had come out onto the walkway, was also burned. Phillips survived his injuries and testified at the trial.

Appellant contends that there was no evidence to support the findings of gross negligence or the issues on proximate cause pertaining to gross negligence. Appellant also contends that all of such findings were so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The jury found that the accident in question resulted from an explosion of gas in precipitator No. 2 and that Jones died as a result of the explosion. They found that Robert McWhirter, J. Bryan Lawson, Elmer Cooley, J. T. Holt, and Charles Fox were managerial employees of appellant. The term 'managerial employees' was defined as employees of a corporation who have charge of the business of the corporation or of the particular department or departments of the business involved in the accident in question. Appellant has no point in his brief attacking these findings.

The jury also found that the following acts were 'gross negligence' and proximate causes:

(1) That the valves of Precipitator No. 2 were clogged with tar (Special Issue No. 4) in sufficient amounts to render said valves defective in the use to which they were being put (Special Issue No. 5);

(2) That McWhirter knew the valves were in such defective condition (Special Issue No. 6) and he maintained the valves in that condition (Special Issue No. 7);

(3) That J. Bryan Lawson knew of the defective condition of the valves (Special Issues No. 11) and maintained the valves in that condition (Special Issue No. 12);

(4) That appellant failed to provide adequate valves for preventing gas from entering Precipitator No. 2 while work was being performed thereon (Special Issue No. 16) and that Elmer Cooley (Special Issue No. 18) and J. T. Holt (Special Issue No. 20) and Charles Fox knew of such inadequacy (Special Issue No. 22);

(5) That there were inadequate venting facilities on Precipitator No. 2 (Special Issue No. 25) and that J. T. Holt knew of such inadequacies (Special Issue No. 26);

(6) That the insulators on Precipitator No. 2 were so located as to subject repairing motor inspectors to an unreasonable risk (Special Issue No. 29) and that this fact was known to Elmer Cooley (Special Issue No. 30).

Contributory negligence issues, (Assumptiong of risk' issues, 'fellow servant' issues and an unavoidable accident issue, were submitted to the jury and were answered adversely to appellant.

It is no longer necessary to cite authority for the proposition that an appellate court when considering a 'no evidence' point must consider only the testimony which supports the verdict of the jury. In making the following statement of facts we bear this rule in mind. The coke gas contained coal tar which was a soft, sticky substance. This gas was propelled by a blower system through 24 inch pipes to the precipitators. Tongue-and-groove type valves were installed which were used to prevent the entry of gas into a precipitator while it was being cleaned. When precipitator No. 2 was first installed, the valves were easy to close, but they had become very difficult to close long before the explosion. No objection was made to testimony that the difficulty in closing the valves was caused by tar in the grooves. When a complaint of gas odors was made, the valves were checked and resteaming was ordered, but the odor of gas was always present in the precipitators and in the by-products area generally. There was no direct evidence that any of the managerial employees knew that the valves were defective because of tar or that the presence of tar in the valves was specifically brought to...