Wood v. Kane Boiler Works

• Decision Date: 07 March 1951
• Docket Number: No. A-2909,A-2909
• Citation: 238 S.W.2d 172,150 Tex. 191
• Parties: WOOD et al. v. KANE BOILER WORKS, Inc.
• Court: Texas Supreme Court

Page 172

238 S.W.2d 172

150 Tex. 191

WOOD et al. v. KANE BOILER WORKS, Inc.

No. A-2909.

Supreme Court of Texas.

March 7, 1951.

Rehearing Denied April 18, 1951.

Armstrong, Barker, Bedford & Lambdin and Williams & Thornton, all of Galveston, for petitioners.

Wigley, McLeod, Mills & Shirley and Bleecker Morse, all of Galveston, for respondents.

BREWSTER, Justice.

Mrs. Bertha Wood, petitioner, sued Kane Boiler Works, Inc., respondent, for damages for the death of her husband, Ralph Wood. Liberty Mutual Insurance Co., also a petitioner, intervened, alleging that as insurer of Pittsburg Laboratory of Texas, employer of Ralph Wood, it had paid a Workmen's Compensation award to Mrs. Wood and was subrogated to that extent to any recovery adjudged to her.

A trial court judgment for petitioners was reversed by the Court of Civil Appeals and rendered for respondent. 232 S.W.2d 866.

Lone Star Gas Company engaged respondent to fabricate and weld 10 miles of 20-inch steel pipe from plate furnished by the former and to be of such specifications as to permit a hydrostatic test pressure of 1000 pounds per square inch. The pipe was to be in lengths of 30 feet, each made from two sections of 15 feet 'girth welded by the fabricator'. The contract provided: 'The finished pipe shall be * * * free from injurious defects, such as defective welds, pits, blisters, slivers, and laminations. The welding of injurious defects shall be permitted on approval of purchaser's inspectors, after chipping to clean metal. The repairing of sweats or leaks in the welds shall be permitted on approval of purchaser's inspectors, after chipping to clean metal. * * * Each length of repaired pipe shall be subjected to a hydrostatic test pressure of 1000 p. s. i. * * * It is understood that in fabricating this pipe your operations will involve sizing the plate by flame-cutting, forming the plate on 16 rolls, welding the longitudinal seam, using the unionwelt submerged arc process * * *, and finally testing each joint by hammering with 2-pound hammer along entire lengths of all welds while at 1000# pressure'.

To do its inspecting Lone Star Gas Company employed Pittsburgh Testing Laboratories of Texas, which, in turn, hired the deceased, Ralph Wood, as night inspector.

In the early evening of November 26, 1948, Wood was at the testing machine set up on respondent's premises and operated by its employees inspecting a section of pipe which respondent had rolled, fabricated and welded, when he found a leak in the pipe and ordered the defect chipped out and rewelded. After he had approved the rewelding, water was turned into the pipe for the hydrostatic test. When the pressure reached 980 pounds the pipe burst immediately in front of Wood, who was standing very close, and the escaping water struck him with such force as to throw him on top of a fence, which was 5 feet high and some 15 feet away. He died shortly, from his injuries.

Mrs. Wood alleged many acts of negligence against respondent, among which were: it failed to make, roll and fabricate the pipe in a careful manner; it failed to weld the seam on the pipe in a careful manner; it failed to operate the welding machine used to weld the seam in a prudent and workmanlike manner; it underwelded and overwelded the seam in a careless and negligent manner; it failed properly to center the underweld on the seam; it failed to center the overweld on the seam; it failed to use a gauge to assure that the weld, while being applied to the seam of the pipe, was on the center of the seam; and it failed to use ordinary and careful means to determine whether the weld was properly centered and properly applied before testing the pipe.

The jury found: (1) that the rupture in the pipe which caused the death of Wood occurred along the seam of the pipe (seam being defined to them as 'that portion of the pipe where the two edges of the steel plate out of which the pipe was being fabricated were drawn together'); (2) that the pipe ruptured at that point because union welt had not been applied at that point; (3) that at the point of rupture the union welt was not centered over the seam; (4) that there was an insufficient weld at the seam at the point where the rupture occurred; (5) that respondent was negligent in failing properly to apply the union welt to the seam at the point of rupture, (6) which negligence was a proximate cause of Wood's death; (7) that in failing to center the union welt over the seam respondent was guilty of negligence, (8) which was a proximate cause of Wood's death; (9) that in applying an insufficient weld to the seam at the point of rupture respondent was guilty of negligence, (10) which was a proximate cause of Wood's death. It found that Wood's death was not due to an unavoidable accident and absolved Wood of numerous charges of contributory negligence.

Petitioners urge but two points of error and the application was granted on both. The first is that the Court of Civil Appeals erred in holding 'as a matter of law that, because Wood was employed to see that the pipe to be delivered by Respondent to Lone Star Gas Company met the required hydrostatic tests, Respondent was under no duty to him to exercise any care to safeguard him from the injury inflicted upon him which the jury has found proximately resulted from the negligence of Respondent, in sending forth for a hydrostatic test a section of pipe in which there was a hidden danger to him negligently created by Respondent's servants in welding the pipe on the welding machine with which Wood had nothing to do, and which he was under no duty of supervising.' The second point complains of the holding by the Court of Civil Appeals that, under those circumstances, he assumed the risk of injury.

The doctrine of assumed risk applies only in cases of master-servant relationship. West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W.2d 451, opinion approved. Hence, although any distinction between the two points of error would seem to be of little substance, we shall examine the question of respondent's liability on basis of whether it owed Wood any duty not to injure him, as presented by the first point.

The doctrine of no duty is said to rest on the maxim volenti non fit injuria, which means 'that to which a person assents is not esteemed in law an injury'. Levlon et ux. v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, 877, error refused. It means that the injured party consented to the act or omission which caused his injury and which, without such consent, would be a legal wrong. White v. McVicker, 216 Iowa 90, 246 N.W. 385. An excellent discussion and application of the maxim appears in Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233.

In 65 C.J.S., Negligence § 174, page 848, it is said, 'While it has been held that the doctrine of assumption of risk, in its primary or usual meaning, is limited to controversies between master and servant and is not applicable in the absence of any contractual relation between the parties, there is ample authority for the view that in its broader sense the doctrine of assumption of risk may extend beyond contractual relations * * *. In any event, when plaintiff has brought himself within the operation of the maxim, Volenti non fit injuria, he cannot recover. The doctrine discussed herein, by whatever name it may be designated, is said to rest on, or be in its nature, effect, and import the equivalent at least of, the principle expressed by the maxim, Volenti non fit injuria, which is itself predicated on the theory of knowledge and appreciation of the danger and voluntary assent thereto. * * *

'The mere encountering of a risk, * * * does not, legally speaking, constitute assumption of risk; it is only when the risk exists in spite of the exercise of due care or when the risk results from negligence which is obvious that it is assumed by the person injured'. (Italics ours.) And see Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041.

In Gover v. Central Vermont Ry. Co., 96 Vt. 208, 118 A. 874, 877, the Supreme Court of Vermont says that since the maxim extends beyond contractual relations, the limitations of the doctrine of assumption of risk based thereon must be looked for in the terms of the maxim itself; that any other course would be illogical and the limitations could not escape being purely artificial; that, therefore, the doctrine of assumed risk, in an action between persons not having relations by contract, must be confined to cases where the plaintiff knew and appreciated the danger and put himself in the way of it of his own free will and as the result of an 'intelligent choice'. In support of this conclusion the court then observes: 'In effect the English cases hold that mere knowledge of the risk does not necessarily involve consent to the risk, and that the maxim does not apply on the mere showing of knowledge of the danger, but only where the circumstances are such as warrant the inference that the plaintiff encountered the risk freely and voluntarily with full knowledge of the nature and extent thereof. Thomas v. Quartermaine, supra (18 Q.B.Div. 685); Yarmouth v. France, 19 Q.B.Div. 647; Smith v. Baker, 60 L.J. (N.S.) 638; Broom's Legal Maxims (7th Ed.) 219. Lord Chancellor Halsbury expresses the opinion in Smith v. Baker that, in order to defeat a plaintiff's right by the application of the maxim, when he would otherwise be entitled to recover, the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.'

Under its contract with Lone Star Gas Company, respondent agreed to take metal plate furnished by the former, roll it into pipe of given dimensions and weld the seam where the two ends of the plate came together so that the pipe would be free of 'defective...