Sullivan v. Shell Oil Company

• Citation: 234 F.2d 733
• Decision Date: 31 July 1956
• Docket Number: 14571.,No. 14570,14570
• Parties: James P. SULLIVAN, Appellant, v. SHELL OIL COMPANY, Appellee. Herman R. ENGBERSON, Appellant, v. SHELL OIL COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

234 F.2d 733 (1956)

James P. SULLIVAN, Appellant, v. SHELL OIL COMPANY, Appellee.

Herman R. ENGBERSON, Appellant, v. SHELL OIL COMPANY, Appellee.

Nos. 14570, 14571.

United States Court of Appeals Ninth Circuit.

June 20, 1956.

Rehearing Denied July 31, 1956.

COPYRIGHT MATERIAL OMITTED

J. Adrian Palmquist, Oakland, Cal., Frank T. Cornish, Berkeley, Cal., for appellant.

Weinman, Rode, Burnhill & Moffitt, Oakland, Cal., Cyril Viadro, San Francisco, Cal., for appellee.

Before HEALY and BONE, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This appeal raises the question of the duty of an owner-occupier of premises to the employees of an independent contractor engaged in dismantling a tank on the premises. The action is one to recover damages for personal injuries sustained when the center column of one of defendant's storage tanks on which plaintiffs were working, collapsed.

The question is here on appeal by plaintiffs, Sullivan and Engberson, from a directed verdict and judgment in favor of defendant, Shell. Jurisdiction of the District Court was based on diversity of citizenship.

Upon appeal from a judgment of dismissal entered upon the close of all the evidence, the appellant is entitled to the benefit of every inference which can reasonably be drawn from the evidence viewed in the light most favorable to the cause of action asserted. Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Schnee v. Southern Pacific Co., 9 Cir., 1951, 186 F.2d 745, 746; Graham v. Atchison, T. & S. F. Ry. Co., 9 Cir., 1949, 176 F.2d 819, 823; Kingston v. McGrath, 9 Cir., 1956, 232 F.2d 495.

Viewing the evidence in such light, the record discloses the following: Plaintiffs were employees of Southwest Welding & Manufacturing Company, hereafter referred to as Southwest. Southwest, in 1952, contracted with the defendant, Shell, to dismantle and rebuild a number of storage tanks including Tank 1006, a steel tank 24 feet high and 24 feet in diameter.

The center column, the main support for the roof, consisted of six inch channel backed by four inch channel. The column was anchored at the bottom of the tank, and welded at the top to a circular piece of metal, 24 inches in diameter, called the "dollar plate." Twelve rafters were bolted to the dollar plate at one end, and, spreading out like the spokes of a wheel, were welded to clips on the inside of the shell of the tank at the other end. The steel roof was welded to the sides or shell of the tank. The roof thus was supported by the center column, the rafters and the sides of the tank.

Tank 1006 was put in service by Shell in May of 1951 and used for the storage of hydro-carbons and sulphuric acid. In January 1952 the tank was inspected by Shell. The inspection, conducted by Shell employees, was made in order to establish the corrosive rate of the metal, thereby enabling Shell to determine the approximate retirement date of the tank. Following the inspection, it was concluded that the tank should be taken out of service in August of 1952. A further inspection in August of 1952 by Shell, revealed that the metal was extremely corroded and in places the center column was corroded through, leaving holes the size of baseballs or golf balls. The tank was then withdrawn from service and bids let for dismantling and rebuilding.

The customary procedure in dismantling such a tank is as follows: The roof of the tank is cut in half with acetylene torches; then the workers burn around the shell of the tank where the roof joins the shell; next the halves are themselves cut in half and lift pads are welded onto each quarter and removed by crane. At the start of the operation a hole is burnt in the center of the roof to allow fumes to escape. This exposes the dollar plate with the rafters resting on top of the dollar plate and bolted thereto.

While there is still some roof there to work on, the heads of the bolts that hold the inside edge of the rafter to the dollar plate are burnt off. The bolt itself does not drop through. Pressure keeps the bolt in place, holding the rafter to the dollar plate. Following the complete removal of the roof the rafters are removed one by one by burning the clip off at the outside edge of the rafter, and the rafter is then hit up or down, or jiggled to drop the bolts, and then removed.

Following this, the center column is taken out by wrapping a sling around it. Lastly, the outside shell itself is removed by burning off portions of the plate, piece by piece. With everything moving smoothly, a tank such as that Tank 1006 could be dismantled in one day.

On the particular day in question, the following work had been done. The hole was cut in the center of the roof, half of the roof had already been removed and the other half had been burnt almost all the way around the outside edge. The heads of the bolts that connected the rafters to the center column had been burnt off. Sullivan was starting to burn the remaining half into quarters when Engberson came up on top of the roof. It was at this time that the center column collapsed, resulting in the injuries to the appellants.

As to appellants' knowledge, if any, of the defective column, the record shows: Both appellants were experienced in the field of repairing, dismantling and constructing tanks, Sullivan having performed this work for eleven years and Engberson for twelve or thirteen.

Sullivan testified that prior to the accident no one from Shell had talked to him about the tank; that he knew nothing of its prior condition, or what its contents had been; that he had no knowledge of the condition of the center column and that although he knew the center column was to be scrapped, and the top, bottom, and rafters saved for rebuilding, this meant nothing to him insofar as the condition of the center column as a support member was concerned; that there were two open manholes at the bottom of the tank, but he did not look inside, nor make any examination of the center column; that it was not his job to inspect the center column; that he had not investigated because "we start work on a tank, the tank is supposed to be O.K. to go on, reasonably safe to go on, and furthermore, we aren't inspectors, we aren't qualified as inspectors to go in and inspect the tank. It is supposed to be done by men that are qualified and if it is safe or not safe to tell us about it."

Engberson testified that he was never at the tank with anybody from Shell to make an inspection of the tank; that he talked with Mr. Slobodnick of Shell as to what fittings he wanted saved; that Cady of Southwest gave him the work order the day before the accident; that he knew that the top, bottom and rafters of the tank were to be reused in rebuilding the tank; that he had been inside the tank for about ten minutes with Cady on a date two or three days before the accident happened and that from what he could see everything looked all right; that it was fairly dark inside the tank and one could not see very well; one could not see the top six or eight feet of the center column; that Cady asked him how much of the column he wanted to save; that he replied that as long as part was going to be scrapped, they might as well scrap all of it; that no one at Southwest told him anything about the center column and that he never saw any of Shell's inspection reports; that he only had the work order in his possession; that he had heard this was an acid tank; that instructions to scrap a center column did not mean to him that the center column was no good insofar as support was concerned.

Beck, Plant Superintendent of Southwest had looked in the manhole before the accident and when asked if he saw anything unusual, answered, "Nothing except it was dark." Steele, another worker on the job testified he could not tell before the accident, even with half the roof cut off, that the center column was in bad shape; that the tank looked good all over to him; that after the accident, inspection of the center column showed it was thin, about an eighth of an inch in thickness; that when the column buckled, "she just spread out like a gopher snake."

There was evidence from Shell inspectors and engineers that even a trained man could not tell whether metal is good or not with the naked eye; that special instruments and techniques are required for inspections, a C-clamp, a micrometer, and audigage and a ballpeen hammer. Trent, a Shell inspector, testified one could not see or visualize a thinning of the metal, that it would take a clamp; that one could see the edges have thinned from the original thickness, but one could not visualize how thick or how thin they were; that he could not determine by merely looking at the metal whether it was sound or unsound, that was why he carried instruments.

The trial court reserved ruling on the motion for a directed verdict at the close of appellants' case. Rule 50, Fed.Rules Civ.Proc. 28 U.S.C.A. At the close of the evidence on both sides he granted the motion. In so doing and in entering judgment for Shell, the trial court held that Shell owed no duty to the plaintiffs insofar as their injuries were caused by conditions which the contractor was employed to remedy.

It is appellants' contention that the court erred in directing a verdict for Shell and entering judgment thereon; that Shell owed to them the duty to maintain its premises in safe condition, i. e. to furnish them a safe place in which to work; that such duty was not fulfilled and as a result thereof they sustained the injuries of which they now complain.

There can be no argument that the jury would have been entitled to find that the center column was in fact defective, since the accident itself is evidence thereof. Paxton v. County of Alameda, 1953, 119 Cal.App.2d 393, 408, 259 P.2d 934. There was ample testimony in the record as well for the jury to arrive at this conclusion.

Clearly, the jury could have found...