Sternenberg v. Marshall

• Decision Date: 08 April 1953
• Docket Number: No. 10122,10122
• Citation: 257 S.W.2d 312
• Parties: STERNENBERG v. MARSHALL et al
• Court: Texas Court of Appeals

Page 312

257 S.W.2d 312

STERNENBERG v. MARSHALL et al.

No. 10122.

Court of Civil Appeals of Texas, Austin

April 8, 1953.

Rehearing Denied April 29, 1953.

James R. Meyers, Coleman Gay, Austin, for appellant.

Zollie C. Steakley, James H. Rogers, Austin, for appellees.

HUGHES, Justice.

This is a suit for damages arising from the death of Elmo Marshall who at the time of receiving his fatal injuries was an employee of appellant F. W. Sternenberg. Appellees are the surviving wife, children and parents of deceased and the administrator of his estate.

Marshall was severely burned while using, in the course of his duties, a weed burner at appellant's lakeside lodge in Travis County on January 7, 1951. He succumbed to these injuries on March 30, 1951.

Appellees pleaded that while Marshall was so using the weed burner that the flexible fabric hose leading from the fuel tank to the nozzle broke without warning immediately releasing a quantity of kerosene oil which was sprayed by air pressure upon the person and clothes of Marshall and was instantly ignited.

Appellees charged appellant with negligence in failing to furnish Marshall with a safe weed burner with which to work and in failing to inspect and repair the same.

Appellant alleged that Marshall was guilty of numerous acts of contributory negligence, that he, Marshall, was in complete charge of the weed burner and had at least equal knowledge with appellant of its condition and that he had assumed the risk attending its use.

Findings of the jury on issues pertinent to this appeal are:

1. That the flexible hose on the weed burner, on the occasion in question, was not strong enough to withstand the pressure normally exerted in such hose in the operation of the burner. (This finding was followed by appropriate findings of negligence and proximate cause.)

2. That a visual inspection of such hose would not have disclosed its weakness.

3. That Marshall did not fail to inspect the hose.

4. That Marshall did not know of the weak condition of the hose.

It was undisputed that appellant made no inspection of the hose except a visual inspection.

Appellant's first point is that the court erred in refusing to grant his motion for an instructed verdict and for judgment despite the verdict.

Appellant bought the weed burner from the manufacturer about October 1, 1946, after receiving a manufacturer's circular reading:

'Safe-Compact-Portable

'A 7 ft. length Oil Resisting Hose with brass nipples.

'Simple, foolproof-no movable parts to get out of order. Can be operated by the most inexperienced person after reading the simple instructions sent with every outfit.

'Absolutely Safe

'Indoors

Outdoors

'Banish once and for all the thought that there is any danger in using an Aeroil Burner! You can use it in high or calm-indoors or outdoors-with perfect safety.'

The burner, when received, was assembled by appellant and Marshall after appellant had read over the instructions to Marshall who could neither read nor write.

It was Marshall's duty to clean, oil and fill the burner and he was the only one who used it except for short periods of time when he was relieved by appellant or some member of his family.

The burner was used only two or three times a year. When not in use it was stored in a dry tool shed, the seven-foot hose lying on the floor. It was customary to burn all the fuel in the tank before storing, but otherwise the hose was not drained or cleaned of any remaining kerosene.

The burner was normally operated at a pressure of 20 to 30 pounds per square inch but it was tested to stand an operating pressure of 250 pounds and had a potential operating pressure of about 1,000 pounds.

In operating the burner air was forced into the tank causing the kerosene to flow through the hose to the torch and to vaporize. This torch is held in the operator's hands and appears to be about 18 inches long from the end of which a four-inch flame is delivered 36 inches at a temperature of 2000 F.

The 7-foot hose attached to the burner was a one-ply hose lined with a synthetic rubber called neoprene.

Concerning this substance and the hose Dr. Kenneth A. Kobe, professor of chemical engineering at the University of Texas, testified:

'* * * neoprene is a material that is quite like natural rubber in many of its properties. It probably is not quite as elastic. It has better aging, better resistance to aging, is somewhat better resistant to petroleum. Cold affects it more than it does natural rubber. There are a number of properties like that.

'Q. State, if you know, Dr. Kobe, if neoprene is commonly used in the manufacture of industrial hoses such as those that are used on weed burners, pear burners and other types of apparatus which carry a fluid, a hydrocarbon, kerosene or gasoline fluid for ignition purposes. A. Neoprene is very frequently used either alone or as a lane for hoses that are to be used to carry petroleum or petroleum fractions.

'Q. Dr. Kobe, are you familiar with the effect of the lighter hydrocarbons and particularly the effect of kerosene upon synthetic hose and particularly upon a neoprene hose? A. Yes.

'Q. Would you explain that, please? A. All hydrocarbon fluids, but particularly the lighter ones, are absorbed both by natural rubber and by synthetic rubber. Neoprene would absorb the hydrocarbon fluid like kerosene or gasoline, and under those conditions of absorbing the kerosene, it would undergo a swelling and become somewhat more porous.

'Q. State what the effect, if any, the absorption of kerosene will have upon the life and strength of a synthetic hose. A. Well, this process of swelling the rubber, and that decreases the tensile strength of the rubber, and under conditions where there would be alternate, I believe you would say, wetting and drying or swelling and then evaporation and recession to approximately previous conditions, the rubber there would become-or the neoprene would become more porous. It would be more susceptible for continued absorption of kerosene and further swelling.

'Q. What is the effect of the continual absorption of the kerosene and the continual swelling with reference to the strength of the hose to resist pressure? A. This continued process of swelling and recession would cause deterioration of the neoprene, and it would have less strength to resist pressure.'

In answering a hypothetical question based on the evidence Dr. Kobe expressed an opinion that the hose involved here 'would be safe to use for a period of two or three years, and probably that is all.'

The precise question raised by appellant under this point is stated by him to be:

'The question presented by this point is whether or not, as a reasonably prudent person, appellant was charged with the knowledge possessed by an expert chemical engineer that the inside of the hose might have deteriorated from use even though the hose appeared to be perfectly sound and even though the claims of the manufacturer were that the hose was 'oil resisting' and the burner could be used 'with perfect safety'. Under the verdict of the jury appellant has been held to be negligent in furnishing the weed burner so equipped to Elmo Marshall although he thought it was perfectly safe and any information to the contrary is not a matter of common knowledge.'

Appellant relies upon the general rule that a master is not an insurer of the safety of the servant and the more specific and more applicable statement of the law found in such cases as Texas & N. O. R. Co. v. Sarver, Tex.Civ.App., 113 S.W.2d 317, 319, (Dallas, writ ref.) that 'There is no rule of law that imposes upon the master the duty to discover latent defects, where there is nothing to indicate that any such defect exists * * *.'

It is also the law that the master has a nondelegable duty to use reasonable care in furnishing a servant with tools in such condition that he will not be endangered by ordinarily careful operation and use of them and the master must likewise exercise reasonable care in maintaining such tools in such condition. 29 Tex.Jur. p. 177.

The diligence which will amount to ordinary care must be measured by the circumstances of the case.

The circumstances here are such that in our opinion the master could not rely upon casual visual inspection of the hose as an adequate discharge of his legal duty.

Every prudent person is charged with knowledge that the ravages of time are inexorable and that all physical properties are subject to deterioration from age and use. The character of the use is most important. Here the hose was used for piping kerosene under pressure of 15 to 20 pounds. It is common knowledge that pressure tends to weaken the substance against which it is exerted. It is common knowledge too that moisture has a deteriorating effect but in addition to this appellant had special knowledge that kerosene caused injurious reactions because of the advertising circular which noted the oil resistant qualities of the hose. This was a distinct warning not only that kerosene was harmful to the hose but that the hose merely retarded or resisted but did not stop or prevent its harmful effects.

Considering the age of the hose and all other attending circumstances we have concluded that appellant's first point should be overruled. This conclusion is sustained in principle by the following authorities: Houston & T. C. R. Co. v. Patrick, 50 Tex.Civ.App. 491, 109 S.W. 1097 (writ denied); Louisiana Ry. & Nav. Co. of Texas v. Eldridge, Tex.Civ.App., 293 S.W. 901 (Dallas writ ref.); 3 Labatt's Master and Servant, 2nd Ed. Secs. 1059 and 1061.

Appellant's second point is that the court erred in holding that appellees could recover because the evidence shows that Marshall had complete charge of the weed burner and had at least equal knowledge with appellant of its condition.

Appellant testified that Marshall had complete charge of the burner and that it was his duty to see that it was kept in good shape.

Appellant...