Tullos v. Texas Pipe Line Co.

• Decision Date: 28 October 1940
• Docket Number: No. 11027.,11027.
• Citation: 145 S.W.2d 267
• Parties: TULLOS et al. v. TEXAS PIPE LINE CO.
• Court: Texas Court of Appeals

Page 267

145 S.W.2d 267

TULLOS et al. v. TEXAS PIPE LINE CO.

No. 11027.

Court of Civil Appeals of Texas. Galveston.

October 28, 1940.

Rehearing Denied November 27, 1940.

Appeal from District Court, Fifty-Fifth District, Harris County; Ewing Boyd, Judge.

Suit by Carrie Tullos and others against the Texas Pipe Line Company for exemplary damages for death of an employee of defendant. From judgment for defendant upon motion at close of plaintiffs' evidence, plaintiffs appeal.

Affirmed.

Burris & Benton, of Houston, for appellants.

Sewell, Taylor, Morris & Connally and Ben G. Sewell, all of Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 55th District Court of Harris County—entered in response to appellee's motion therefor at the close of the appellants' evidence and before it had presented any— withdrawing the cause from the jury and decreeing that appellants recover nothing as against the appellee, upon its conclusion that, under the undisputed evidence, "there were no undisputed issues of fact which should be submitted to the jury."

The suit was by the surviving wife and children of J. D. Tullos, deceased, appellants, against the Texas Pipe Line Company, a corporation, appellee, to recover exemplary damages as a result of the death of John D. Tullos, on May 20 of 1937, from injuries received by him in an oilfire while in the employ of the appellee as a pipeline connection foreman at its East Houston tank farm in Harris County.

The appellants, in their brief, assert that the testimony showed the accident to have happened in these circumstances:

"On the 19th of May, 1937, in the early part of the morning, J. D. Tullos went to the East Houston Tank Farm, with a gang of men to superintend the making of a connection in a ten-inch pipe line. That a hole called a bell-hole was dug under the ten-inch pipe line at the place where the connection was to be made, the hole being approximately 6 by 9 feet on the surface and about 3½ to 4 feet deep. The ten-inch line had previously had oil in it and a suction pump was placed on the line to clean out the line preparatory to cutting into it for the purpose of welding in a six-inch line connecting with it. At the place where the cut was to be made in the ten-inch line a small hole was cut into the ten-inch line with a cold chisel and the line tested to determine whether there was still any oil in it. After the line had been tested and found to contain no oil, Travis Robinson, a member of the crew, started cutting a circular opening into the east side of the ten-inch line, which runs in a north and south direction, with an acetylene torch. This occurred some time between 10:00 and 11:00 o'clock A. M. At this time J. D. Tullos was standing on the east side of the pipe line opposite where the hole was being cut into the line and about 10 to 15 feet away from it. At the time, B. B. Fitzpatrick, District Foreman, and Mr. Russell, Assistant District Foreman, both superiors of J. D. Tullos, were also present. Just about the time that the circular opening being cut by the acetylene torch in the 10-inch pipe line had been completed, a large amount of flaming oil burst out of the opening, knocking out the plug and covering the clothes and body of J. D. Tullos with a sufficient amount of flaming oil to burn him to the extent that he died as a result thereof on the following morning about 2:30 A. M."

In inveighing here against the adverse judgment, after reciting that the appellee had, prior to the accident, provided insurance therefor and subsequent thereto had been paying the widow and minor children the prescribed benefits under the Workmen's Compensation Law, Vernon's Ann. Civ.St. art. 8306 et seq., the appellants further charge the exemplary damages to have inured to them as a result of these acts of gross negligence of the appellee-employer toward the deceased employee, each of which proximately caused the latter's injury and death, to-wit:

(1) "In ordering that J. D. Tullos use an acetylene torch in the cutting into the ten-inch pipe-line on the occasion in question and that said gross negligence proximately caused the injuries which resulted in his death."

(2) "In failing to require that pipe lines such as the ten-inch line upon which Tullos was cutting when killed, be cut with either boring-bars or hand-tools, and that such gross negligence proximately caused the injuries and death of J. D. Tullos."

(3) "In failing to provide metal shields to protect J. D. Tullos and others working about a pipe line which was being cut with an acetylene torch, and that such gross negligence was the proximate cause of the death of J. D. Tullos."

(4) "In failing to make rules and regulations forbidding the transfer of oil from one tank to another in the vicinity of the place where a line was being cut with an acetylene torch, prior to the date of the accident, and that such gross negligence was a proximate cause of the injuries and death of J. D. Tullos."

(5) "The evidence failed to show as a matter of law that J. D. Tullos assumed the risks upon the occasion in question, so as to preclude the plaintiffs from bringing an action for his death."

(6) "The evidence failed to show as a matter of law that J. D. Tullos was guilty of contributory negligence proximately causing or proximately contributing to cause his injuries and death."

The appellee answered by general denial, pleas of unavoidable accident, contributory negligence, and assumed risk upon J. D. Tullos' part "in selecting the method and plan of operation used in making the connection, in directing the welder to cut into the line, in failing to personally inspect the line to determine if it was free from oil, in standing at the edge of the bell hole at the time the ten-inch pipe was being cut, and in other respects."

In this court it meets appellants' given contentions for gross negligence with these counter-propositions:

"The trial court did not err in withdrawing the case from the jury and entering judgment for the defendant, because there was no evidence that the defendant was guilty of gross negligence in `ordering' J. D. Tullos to use an acetylene torch in cutting into the ten-inch pipe line on the occasion in question, or in failing to require the use of boring bars or hand tools for such work, it being established by the uncontradicted testimony that:

"(a) The method used in cutting the pipe line with an acetylene torch was the usual and customary method adopted by all companies engaged in this type of work.

"(b) The defendant had used this method of cutting into pipe lines for over ten years without a fire or explosion ever occurring.

"(c) The deceased, J. D. Tullos, had used this identical method in performing this work for defendant on `literally hundreds' of occasions, without a fire or explosion ever occurring.

"(d) The deceased, J. D. Tullos, never complained to the defendant that he considered this method as unusually hazardous, although the defendant held monthly safety meetings, which Tullos attended regularly, at which the employees were urged to report any hazardous working conditions or facilities.

"(e) This method of work had been found to be safe and practicable in actual experience over a period of ten years, when the usual precautions were taken to clear the pipe line with suction pumps and test it for oil through a small hole drilled into the pipe, and on this occasion, in accordance with the defendant's instructions, the acetylene torch was not applied to the pipe line until these usual precautions had first been taken.

"(f) The deceased, J. D. Tullos, was not `ordered' by the defendant to use an acetylene torch in cutting the pipe, but the defendant simply approved this method, it being the duty of Tullos as a `connection foreman' to recommend the use of any other method which he considered safe and practicable."

"The trial court did not err in withdrawing the case from the jury and entering judgment for the defendant, because there was no evidence that the defendant was guilty of gross negligence in failing to provide `metal shields' for Tullos and others working about the pipe line which was being cut with an acetylene torch."

"The trial court did not err in entering judgment for the defendant at the close of the plaintiffs' evidence, for the reason that there was no evidence of any probative value from which the jury could have found that the defendant was guilty of gross negligence in failing to make rules and regulations forbidding the transfer of oil from one tank to another in the vicinity of the place where the line was being cut with an acetylene torch, and that such gross negligence was a proximate cause of the injuries and death of J. D. Tullos, because:

"(a) Under the undisputed evidence the defendant did have such a rule and regulation.

"(b) Under the undisputed evidence a failure, in any event, to have had such a rule or regulation could not have constituted gross negligence.

"(c) A failure, in any event, to have had such a rule or regulation could not have been a proximate cause of the death of J. D. Tullos because there was no evidence of any probative value establishing any causal connection between an omission to have such a rule and the death of J. D. Tullos."

It further thus presents its affirmative defenses of assumed risk and contributory negligence, in event it be found or held that there was any evidence of probative force of gross negligence developed against it, which it strenuously denies, as follows:

"The trial court did not err in entering judgment for the defendant at the close of plaintiff's evidence, because under the undisputed evidence the plan and method of operation being used in making the connection into the ten-inch line was the usual and customary plan and method used in such work; that fact was well known to the deceased, J. D. Tullos, and by reason of his voluntary participation therein he assumed the risks...