Texas Pac. Coal & Oil Co. v. Robertson

• Decision Date: 06 March 1935
• Docket Number: No. 6067.,6067.
• Citation: 79 S.W.2d 830
• Parties: TEXAS PAC. COAL & OIL CO. v. ROBERTSON et al.
• Court: Texas Supreme Court

Page 830

79 S.W.2d 830

TEXAS PAC. COAL & OIL CO. v. ROBERTSON et al.

No. 6067.

Supreme Court of Texas.

March 6, 1935.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by Mrs. Beulah W. Robertson and others against the Texas Pacific Coal & Oil Company. To review a judgment of the Court of Civil Appeals which affirmed a judgment for plaintiffs [39 S.W.(2d) 912], defendant brings error.

Judgments reversed and judgment rendered for defendant.

John Hancock and Clarence Wightman, both of Fort Worth, for plaintiff in error.

Turner, Rodgers & Winn, of Dallas, and L. H. Flewellen, of Ranger, for defendants in error.

SMEDLEY, Commissioner.

Defendants in error, the widow and heirs of George W. Robertson, Jr., deceased, sued plaintiff in error for exemplary damages, alleging that the death of Robertson, who was employed as a driller on an oil and gas lease in Palo Pinto county owned by plaintiff in error, was caused by gross negligence of plaintiff in error and its employees. Workmen's compensation insurance was carried and an award of compensation was made and paid, and accepted by defendants in error.

A well which had already made a small quantity of oil was shot, which increased the flow of oil and gas. The deceased, Robertson, was employed as a driller, his duties being at and about the well. Sporer was employed as tool dresser, one of his duties being to attend to pumping the oil from the well into a flow tank which was situated from 75 to 100 feet from the well. Near the flow tank was a gasoline engine to be used in pumping the oil. The testimony was that this engine was from 4 to 11 feet from the flow tank. A short time after the shooting of the well was completed, Bonney, who was the farm boss and was also acting as field superintendent, directed Sporer to pump the oil from the well into the flow tank. and left to go to another well. An hour or more thereafter, Sporer cranked the engine in order to begin pumping the oil, when immediately gas, which apparently arose from the flow tank, caught fire. Robertson, without the knowledge of Sporer, had left the well and was on the flow tank. His clothing caught fire and he died soon thereafter from the burns. At the time of the fire, no one except Robertson and Sporer was at or near the well or the flow tank.

But three issues were submitted to the jury, the first being as follows: "Do you find from a preponderance of the evidence that the defendant was guilty of gross negligence, as that term is herein above defined, in attempting to crank up the gasoline engine at the time and place and under the circumstances?"

The second issue was that of proximate cause, and the third the amount of exemplary damages. The jury answered the first two issues in the affirmative and fixed the amount of damages at $5,000. Judgment for that sum was affirmed by the Court of Civil Appeals. 39 S.W.(2d) 912.

In granting the application for writ of error, the court expressed doubt whether the issue of gross negligence was in the case. Decision of the case has been delayed to await the decision of Fort Worth Elevators Co. v. Russell (Tex. Sup.) 70 S.W.(2d) 397.

After a careful examination of the entire statement of facts, we have reached the conclusion that there is no evidence from which it can reasonably be inferred that plaintiff in error was guilty of gross negligence in attempting to crank the gasoline engine at the time and place and under the circumstances.

The definition of gross negligence which has probably been quoted oftener than any other by the courts of this state is that given by Judge Stayton in Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S. W. 408, 411, and is as follows: "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 rights or welfare of the person or persons to be affected by it."

Similar definitions are given in Southern Cotton Press, etc., Co. v. Bradley, 52 Tex. 587, and International & Great Northern R. Co. v. Cocke, 64 Tex. 151.

It is to be observed that the definition quoted uses the words "conscious indifference," thus stressing the mental attitude of the person charged to have been grossly negligent. Gross negligence is positive or affirmative, rather than merely passive or negative as ordinary negligence often, and perhaps usually, is. As said in the discussion in Ruling Case Law of the right to recover exemplary damages for gross negligence: "The rule is that recovery is permitted, in, and confined to, cases where the negligence is wilful, or where it is so gross as to indicate wantonness or malice." 8 R. C. L., p. 590. Mere indifference is not enough. The indifference must be conscious. The indifference is to the rights or welfare of the person or persons who may be affected by the act or omission. Thus the doctrine of foreseeableness becomes important.

The Court of Civil Appeals in Magnolia Petroleum Co. v. Ford, 14 S.W.(2d) 97, rested its decision, that the evidence did not raise the issue of gross negligence, very largely upon the conclusion that the employer could not reasonably have foreseen that the employee would place himself in the particular position in which he was injured. That portion of the opinion of the Court of Civil Appeals in which the finding of no evidence of gross negligence was made was approved in the refusal of the application for writ of error. Ford v. Magnolia Petroleum Co., 118 Tex. 461, 17 S.W.(2d) 36.

The person charged with the act or omission cannot be consciously indifferent to the rights or welfare of another unless he knows, or should know, that such another will probably be affected by the act or omission. Sporer's mental attitude and knowledge are important, including knowledge that he had, or should have had as to the probability of injury to Robertson or to some other person. In International & Great Northern R. Co. v. Cocke, 64 Tex. 151, 157, Judge Stayton said: "The probability of danger from a given cause must be considered in determining whether negligence exists, as well as the grade."

The evidence as to the actual conditions and Sporer's knowledge at the time he cranked the engine is as follows: The shooting of the well was completed about 3 o'clock in the afternoon and it began to flow oil at...