*1 Raymond Lynch, Kerr, A. William L. final or- petition aside the to set Smith, Midland, Turpin, Tex., Kerr & Relations Labor National der Midland, Tex., counsel, appellant. petition for Board’s and the is denied Board granted. its order is Dennison, Pecos, Tex., enforcement for John P. Alton Linne, Monahans, Tex., appellee, C. Wright. McDonald, Mrs. Martelle Eva Tex., Odessa, Shafer, McDonald & appellee, The Standard Insurance Co. Judge, HUTCHESON, Before Chief BROWN, and Judges. Circuit RIVES Judge. BROWN, John R. Circuit CORPORATION, OIL GULF Appellant, Wright, employee Zephyr an Drill- ing Corporation, independent con- tractor an oil Gulf Oil and The Standard Eva WRIGHT Mrs. Intervener, Company, Corporation area, Insurance the West Appellees. asphyxiated morning May 9, 1953, Simpson, No. 15692. while he and Driller jetting on Tour were pits. By out one of the Appeals Court of States United general charge, verdict on a Fifth Circuit. negligent jury found Gulf on one or Aug. grounds: more of failure to fur- these place work,
nish safe to make tests gaseous flowing well, from the Wright, to warn to mud off for- ordering continuing mation and pres- in the face of known gas. doing And, so, jury ence of impliedly findings made favorable Wright plaintiff was not con- tributorily negligent, voluntarily did not him, work in hazards known Wright acting employee as an dangers Gulf, the defects and were not known or which those should have been known to invitees and death negligence was Zephyr, not caused sole employer, or as the his result of transitory conditions incident to the progress the work. ways prin-
. Raised in several
is Gulf’s
cipal contention that
there is no evi-
showing
injuries
dence
fatal
re-
any duty owing
from a violation of
sulted
employees
to the
of its
Con-
tractor, especially
danger
since the
must
known and of a
have been well
nature
guard-
which the Contractor should have
during
against,
perform-
and arose
ed
long
admittedly,
G.ulf(cid:127)
after.
ance
lessee,
over,
safe
turned
well site.
*2
began
During1
May
gineer,
conditioning
while
Tour
the mild to
feet,
drilling
weight
depth
obtain a
at a
of about
desired
sufficient to seal
heavy
off or
water
flow was encountered
“mud off”
flow and
the water
The Driller
fumes.
about 3:00 or 4:00 a.m.
The mud
used nor was
was not
any drilling
down,
shut
notified the Contractor’s
done on this Tour.
Pusher,
apparently allowed the
Tool
but
3, May
testing
On Tour
water
flowing. The
water
to continue
water
completed
by
off
the flow shut
strong sulphur
like rotten
had a
odor
preventer.
the blowout
On instructions
eggs
tendency
make the
and had a
to
Gulf, drilling
was resumed about 7:00
gag
eyes.
men
and to
their
On
burn
using
p.m.
drilling
the water
flow as
drilling
Pusher,
of the Tool
instructions
any
gaseous
fluid without
mud. The
was resumed
between 5:30 and 7:00
was, therefore,
flowing
from the
superintendent was
a.m. when Gulf’s
through pipes
pits.
well
into the
Gulf’s
drilling
time,
notified for the first
decision to use the water flow as drill
stopped on
orders2 to close the
Gulf’s
ing fluid and not seal off or “mud off”
During
2, May
well in.
Tour
the well
this water flow and
fumes
based on
connecting
by
was tested
flow lines to a its desire to save the water sand for
permitting
test
tank
the water to flow possible
testing
development
future
into the tank to determine its rate of
anas
artesian water well for water flood
In the meantime
crew of Tour
flow.
ing recovery procedures on old oil wells
supervision
mud en-
of Gulf’s
under
in that area.
2. The
have
sentatives,
observing
performed
access
tendence
vided
approval of Gulf and be
only in
completion
work
general
details
It contained the
pendent
control
form
tractor
prescribed
tionship:
in three shifts
Operations
“Gulf
“The
“In the
“19.
Contractor, but Gulf shall be
designate
contemplated
Tour
Tour 3 4:00
Tour 1 00:01 hrs. to 8:00 a.m.
contemplated
to Gulf to
drilling contract, a Gulf
to the
but with
and direct the
provision:
actual
contractor,
Riepresentatives’
Independent
right
of all
performance
2 8:00 a.m. to 4:00
tests or
right
compensation
thereof..
who
continued
Driller:
Driller: Oliver
Driller:
results obtained. But
(Wright
work,
Contractor,
performance
crew)
work hereunder shall
representative
shall at
(Tours):
'
Contractor
secure the
usual
inspection
considerable
p.m. to 12:00
herein
determining
with the
inspecting
n
* * * performance of the
Simpson
Hightower
for the
Contractor
of the work here-
around the
independent
at
all
Status:
subject
shall
“Day
”
authority
herein
satisfactory
is an inde-
times
purpose
who shall
interested
the work
privileged
Simpson’s
p.m.
deletions,
the
meet the
midnight
whether
superin-
Rates.”
printed
to the
repre-
Rela-
clock
have.
pro-
teristics
fluid must be of a
Exhibit
shall have the
are to
drawing
to Contractor the
of the
sary.”
and the determination of the
(frilling Mud and chemicals were to be
mud
characteristics
provided
performance
nate the work for which the Contractor
expressly left to Gulf:
nique
actual
formed hereunder which is to be
at
such work is
tractor
of this contract.
specify
Contractor.
er
ther
sum
.
“Gulf shall have the
“The term
‘“With
Concerning
day rates,
meaning
to
[*****]
system
per day.”
provided:
contract
-details
be
performance
be
drilling
‘A.’
to Contractor the
attached to and
respect
acceptable
accordance
compensated
employed by
approximately
and control
and at the
‘day
* * *
of all such
Gulf shall have the
At
work on
-
fluid which it deems neces-
of such
being performed
significance
right
expressly provided
of this
to
rate’ shall have no.oth-
* * *
design
type
any
”
to make
and all times dur-
“Day
(cid:127)
drilling
be
work shall well,
equipment,
Contractor in the
expense Gulf,
right
work
Gulf,
at a
made a
superintendence
and of charac-
work;
”
than to
as shown on
general
Rate” it fur-
provisions
and Gulf
stipulated
fluid was
type
by
paid
but the
right
be
surface
specify
desig-
tests
tech-
Con-
per-
by
n
Wright.
7:30
o’clock one
vived
About
to 8:00
but not
It
is uncon-
went out to the
Oliver’s
crew
tradicted that
it was
Contractor’s
build,
for,
shale
ing
fluid was return-
shaker where the
care
and clean
out
pits,
reported
Wright’s reg-
back out of the
and this was one of
*3
strong gas
a
Oliv- ular
there was
odor there.
duties.
passed
er
his
the word to
crewmen
Undercutting all other contentions
Drilling
gas.
careful about
the
by Gulf is the basic one that on this evi-
tinued until the end of Tour 3 and when
ought
dence a directed verdict
to have
by Hightower,
relieved
Oliver told him
granted.
We have concluded that
of
that
the
had
trouble
one
men had
some
point
this
although,
taken,
be-
gas
Hightower to
with the
and warned
large
cause it
rests in
on
un-
the
with his
to see that none
be careful
crew
presentation
usual
of the case on causal
got
gas.
into
of them
the
justice
relationship,
would best be served
1, May 9,
Tour
continued
by a
remand
a new trial for full de-
until
6:30
was
about
a.m. when
velopment
princi-
applicable
under the
loss
In
shut down because of
cones.
ples.
Corp
Associates Discount
v. Unit-
the interim the obnoxious smell con-
States, Cir.,
ed
537; City
tinued, and
one member
crew
States,
Ft. Worth
Cir.,
United
awaiting fishing
from it.
vomited
While
F.2d
Landy,
M.
Inc., Nicholas,
M.
cleaning
tools, the men went
the
about
Cir.,
Wright hydrogen Simpson generally sulphide, were found at but the edge plaintiff’s pit, Simpson theory4 the reserve was re- seemed to be that example, following excerpts See, recognize ter. did not He the situation appellees’ [page dangerous poisonous as 3] from brief: “The or that there was gas present sulphur flowing capable asphyxiating water from the had hole person.” strong [page smell which 25] resembled the smell “The evidence clear- eggs having ly rotten but these indicates the obnoxious smell fumes though dangerous, sulphur odor were as this water that overflowed into they disguised progressed, pits presence made work- the work ” * * * unpleasant dangerous gas [page the em- conditions 29] causing gag “Though Hightower ployees, twenty-five them to to be- had had ” * ** years [page experience 11] nauseated. on come crews and analysis sulphur many have iden- would encountered “A chemical on dangerous coming gas from the occasions and tified knew its characteristics “ * * * * * * nothing [page recognize 12] oc- he did not well.” this situ- Hightower to make' ation believe curred or that there was poisonous gas present capable usual were other than the conditions unpleasant of as- person,” phyxiating supplied] sul- reaction to odor of [Italics sulphur coming phur from wa- fumes sulphide. process gas, In this was not this but some it is evident well-known general special, knowledge, poisons in the that we must draw on new or different including brought injurious scientific which and technical infor- these mation, consequences. not to arrive at a fact conclusion hydrogen sulphide, but to nothing interpretation On this contrary determine whether a conclusion asphyxiation appeared establish sup- on this record can have reasonable fatally poisonous toxic character. The port. determined, Once that is the con- appellee caused claimed cause, sideration of this issue of factual being identified, how death not even forseeability prudence becomes a presence can Gulf’s to foresee its *4 jury matter decision on the new toxicity and How can we tested? evidence, trial on the basis of factual say anticipated Gulf should have scientific, presented. and there particular it would encounter this gas analysis that, encountered, This and once starts with uncon- fatally poisonous “sulphur” odor, char- tradicted knew that evidence of the eggs, acteristics and the smell of that others would not rotten and the location pres- know this? Since in this well this involves us in West Texas. The “ * * * ascertaining hydrogen sulphide ence of whether rea- in West Tex- operations possibly as oil tion, (drilling, transporta- sonable men could not come to contrary conclusion”, long refinery) 5 Moore’s Fed- has been known as Practice, 50.02, page 2314; eral has Banks been § the acute hazard to health and resulting Indemnity Cir., Corp., life Associated 5 from it.5 305, 310; Ryan Distributing 161 F.2d Its extreme hazard arises in from Corp. Caley, Cir., 138, 140; 3 while, the fact that in lower concentra must, course, we consider the record tions, it has the characteristic odor of light general in the state of knowl- eggs6 (the gas rotten by-product is a edge which “reasonable minds” would decomposition, putrefaction organic possess. matter), this is lost7 as concentration Testing approach and, it in meantime, this convinces increases in the con that, record, exposure us tinued adversely on this there is no basis affects the unique, for a smell, conclusion that this function of the respiration sense of increases gas, that, consequent unknown on and inhalation of gases trary, inescapable producing, the conclusion turn, paralysis is gas common, frequently respiratory system9 the fatal was the rapid gas hydrogen encountered and death. well-known The air, is heavier than Appendix: widespread 6. Some indication See knowledge and concern of the industrial 9:1 13:2 hydrogen sulphide hazard is shown 20:513 15 :f27 by readily listed, post, available literature 21:179 22:576 Appendix. simplicity, For refer- Appendix: 7. See are ences herein to the item numbers of 16:684 15:f27 Appendix by page numbers followed 4:2 £28 publication, g., in that e. refers 11:10 8:all 16:684 Hydrogen Sulphide Poisoning Item 9:1 26:1 Big Panhandle, Lake, Texas, the Texas 13:4 28:70 McCamey, Fields, by Texas, W. 14:2 Fowler, P. Xant and H. Bureau of O. Appendix: Report Investigations 8. See Mines No. 1926; page 9:1 October 10 is the table show- ing the medical 10:684 effects humans after supra. exposure and see Note 7 concentrations indicated specified times. Appendix: 9. See 10:2, 9:1, 4:2-5 11:5-10 and see Note infra. operations been has oil places,10 readily damp This low settles object long It has highly in water killer. study is soluble front investigation on a wide agitation,11 so toxic is released on industry14 recognition are with minute concentrations that even elsewhere warning Texas16 deadly.12 of its hazards15 usual telltale necessary to avoid precautions17 egg odor, presence, and the rotten besides the includes burning eyes This (conjunctivitis), toll. ir its awful is and, particularly, lungs, operations nose, throat ritation of dizziness, gagging, breath, contractors.18 shortness of important the wide- vomiting, effects,13 All this and similar all of knowledge industrial this present spread which were here. Appendix: See 11:2-4 1:§203 19:84 5:5 Appendix: 11. See 15:f27 4:2 f28 9:1 *5 10:2 19:84 Appendix: 12. See for tolerated parts per (PPM) he maximum which can is the million 20 exceeding hours) (not long periods 8 (not Dangerous ex- minutes 30 excess 300 to PPM: 400 hours) ceeding 4 1 to minutes 500 PPM: in 30 Fatal 21:180, 231 4:2 to 5 9:1, 22:578, 579 2 10:2, 16:686-689 28:5, 6, 49, 3 60-63, 66 to 75 . 11:10 85, 19:9, 13:11 86 26:1, 2 12, supra. 13. See notes 9 and Appendix: See :§106 31 11:1 13:1, 29:1 2:all 2 30:152 3:1, 2 14:1 26:1, 33:1 5:4, 5, 6 2 1:§203 (cid:127) 5,17, 50-57, 28:1, 10:2 59 4:2 ¡SO- 12:60 6 29:1 32:22 Appendix: 15. See 11:6-8 1:§203 12:60 2:all ' 13:4 6:59 ' 7:36, 28:1 65 29:1, 3, 15 8 to 8:all 30:152 9:1 32:22 10:all Appendix:
16. See ,23:153 4:3, 4 29:9-15 10:2 30:152 ll:all 13:1-4 Appendix 17. See , 24:1.20-1.21 11:12-17 6:59 1:§203 ' 13:11, 12 26:all 8:all 2:20-21 57, 16:689, 28:50 to 690 to 12 4:6-7 9:3 10:4, 80 to 102 23:153 5 5:4-7 §106 31: 27 :all Appendix: See 6:59
51 have, cleaning has, may ef- hazard a marked work routine contractor’s pits. Tex- Consequently, on fect the standard of care under out Texas Work obliga- outset, Act, Compensation as law. At Gulf’s Ann. men’s Vernon’s seq., apply tion is to under the 8306 be measured Civ.St. did not art. et May liability, for once ditions 8 and 9 cut off common law Dennis early Mabee, (Texas), down Gulf’s order 5 Cir. 139 F.2d shut cer May 8, 64 it was its decision thereafter tiorari S.Ct. denied U.S. agreem proceed. on, 1581; Zephyr’s to drill to use 88 Whether L.Ed. nor did mud, drilling fluid, compensation for the water flow ent19 to maintain insur employees operate20 awas decision it reserved to itself ance for its own Gulf’s, employees the contract. act was thus make thus the of Gulf or them Pierce, beneficiaries) (Texas), deprive (or Sun 5 Cir. Oil Co. v. them their 580; Corp. F.2d Production United their ms-chvis Gulf. actual status Chesser, (Texas), 107 F.2d Cir. initiating responsibility But 790; prior opinions 521, 94 F.2d 95 F.2d legal impose act does not itself lia (Tex- Skelly Co., Amacker Cir. bility consequences any on Gulf for its contractor’s, as), 132 F.2d injury more than to Contractor’s Co., Pipeline Holt v. Mexico Texas-New during employee operations, routine all (Texas), 5 Cir. F.2d Carroll are, course, pursuant which Magnolia (Texas), Co., 5 Petroleum Cir. general contractual direction and transitory aor casual normally Contractor alone progress condition from normal Holt, liable. Texas Electric Service Co. v. Works, work, Kane Wood v. Boiler Tex.Civ.App., 662, NRE; *6 177; 191, 172, 150 Tex. 238 S.W.2d Refining Bell, Oil & v. Humble Co. Tex. Co., supra. Skelly Amacker v. Oil Civ.App., 970, 180 S.W.2d error refused grounds, 645, on other 142 Tex. 181 S.W. responsibility the But for control and guise liability 2d 569. And under the of itself, opera- not, decision did make negligence cannot be on Gulf saddled for Zephyr’s em- tions thereafter with Gulf’s its decision not to mud the off water flow. becoming ployees momentary bor- the property. This was Gulf’s Neither Skelly the Gulf, Gipson rowed servants of v. employees nor Contractor could Co., 590, forbid (Texas), 588, Oil 5 152 F.2d Cir. development property of the as Gulf saw 21, appeal, appeal second first may that, having fit. It be determined to Skelly Co., supra, Amacker v. for preserve the oil water sand for well re Gulf’s act to was confined the order to covery use, special Gulf had to take or drilling using proceed with the water extraordinary precautions. But neither drilling It did flow as fluid. not have standing such nor decision the act alone right Zephyr claim the how to control duty, e., negli can be a violation of i. conducted, was to be Stand- gence. McKee, 183, Co. 146 Tex. ard Insurance v. 362, and, event, 205 S.W.2d the at This reduces it to the nature of the injury owed, any, time and death no was if duties once its decision was progress. in fact in What was proceed done reached communicated to provided: Lindsey 19. The contract 20. The cases of v. Texas & N. O. Co., Tex.Civ.App., “.16. Insurance: R. 864, 87 S.W.2d agrees carry Lloyds to “Contractor with an Southern Underwriters v. Ameri company satisfactory Gulf, ca, Tex.Civ.App., insurance 151, 333 S.W.2d error judgment dismissed, correct, business in and authorized do the State are not following Texas, contrary. insurance: against the Work- The first a suit Compensation covering Insurance, theory men’s the Railroad on the of master- employees, servant; second, of Contractor's and all all em- claim a under engaged ployees Compensation against Sub-Contractor the Texas Act a performed compensation work to be poli in the hereunder common insurer whose ** cy *. Certificates of insurance cov- intended cover and bo for the erages shall be furnished Gulf before benefit of both Owner and Contractor. begun.” this contract is work under 52 drilling. relationship Patterson, 517, 391, with under 153 Tex. The 271 S.W.2d 393; which, occupier pri- Texas law an land whether between involves marily (including employees premises, his invitees the condition of or a contractor) supplied use, or, independent between chattel com- more general employees parable here, a for work contractor and- in or around dan- gerous same, things, manufacture, & Roosth subcontractors is sale White, supplying dangerous brings articles, 152 Co. v. Genecov Production 619, 99; application underlying Tex. 262 v. Hen into S.W.2d Smith standard 21 duty ger, 425, 456, of the Restatement of Law 148 Tex. 226 S.W.2d 20 if, 853, gives only if, sup- occupier,22 like to a arises A.L.R.2d rise * * * 24 plier,23 duty, “Accepting the status or manufacturer has reason * * * expect likely plaintiff that of that those to come in contact danger. invitee, it will know defendant owed him with not business duty make use care to reasonable objective upon This measures reasonably keep safe for could standard of what defendant rea- ** Triangle his Motors use sonably expect25 others know. “ * * * 354, Richmond, 258 152 Tex. Dallas persons is such to warn Building 62; Medical dangers Hall v. S.W.2d which could existence Houston, reasonably apparent 151 Tex. S.W.2d expected not to be * * * Torts, 497; Henger, , Restatement, supra; Renfro or obvious Smith 343”, Henger, supra Lewis, Drug Tex. 235 S.W. Smith v. at § v.Co. Brockman, Weingarten, Inc., Liability 609; does S.W.2d exist
2d not ** “ ‘ * 698; McKee v. for defects which are 134 Tex. S.W.2d quoted many times tbe for which and have chattel manner courts person supplied, approval Restatement: it is from the whose use Inc., Chilton, supplier Blickman, see, Tex. if S. “ 646; (a) knows, Civ.App., McAfee v. or from facts known to him realize, Corporation, should chattel or is 137 Tex. Gas Travis likely Co. Produce use for Kimbriel S.W.2d supplied; Tex.Civ.App., *7 Mayo, it 180 S.W.2d which is v. 504 ; Latimer, Tex.Civ.App., “(b) has no reason to believe that Motors v. Horne sup- 1000; chattel Bank those for whose use the is Houston National 148 S.W.2d 374; dangerous condition; plied Adair, will realize its 207 S.W.2d 146 Tex. v. supra. McKee, v. Insurance Co. Standard “(c) to reasonable care fails exercise Torts, Law, 343: § 22. Restatement dangerous them of its condi- to inform liability subject possessor to of land is “A tion or the facts make it like- which bodily vis- to business harm caused for supplied] ly to [Italics be so.” by condition or artificial a natural itors approval Kirby Lumber Cited Co. with only if, if, he but thereon 672; Tex.Civ.App., Murphy, v. 271 S.W.2d by knows, rea- “(a) exercise of or see, & Roosth Genecov Production discover, condi- could care sonable citing White, supra, v. Section 392 Co. him, which, should to he if known tion by incorporates ref Section involving risk an unreasonable as realize erence. them, and to they Torts, 394: “The manufacturer Section that “(b) to believe has no reason be, chattel, to a which he knows or to or realize the condition therein, discover will * *” * use, likely be, sub- is be to [Italics involved x'isk supplied] ject liability §§ as stated in 388 to to ap- 390.” been cited with 343 has Section chattel, “A supra, vendor of a Henger, Section 399: proval Hous- in Smith person, Adair, a third who sells supra. manufactured Bank v. National ton likely knowing is, it or to that is be it Torts; sup- “One who 23. Section subject liability dangerous, stated is to as * ** another to plies chattel a to 390.” §§ liability subject those whom use, is supplier Calvert, Patterson, expect McKee 25. Justice use the should supra, to Dean Keeton’s Article refers or of the other the consent chattel use, probable Review 629-648. vicinity 100 Pa.Law its to be bodily use caused harm gas, danger it is reason- is evident issue substantial character such per- presented anticipated proof ably them which no from but on to be ordinary ”, (and exercising specifically, A. C. offered. care’ More it sons be): Stasny, Tex.Civ.App., 223 will in view Co. v. 310, 313, of the indicated wide- Burton refused; spread knowledge hy- it error the nature of .2d S.W “ * * * drogen sulphide, may invitees its where occurrence exist warning signs fully operations, expected of its aware would not be ** * ”, presence, qualities, dangers Wal- and its toxic or would of its use 493, reasonably green-Texas Shivers, prudent 137 Tex. mineral Co. v. lessee reason- 629; ably expect26 Houston National 154 S.W.2d contractors be, is, may Adair, supra. employees working or and their Bank It around a ought dangers (or which are area akin to West Texas dangers be) no open to which and obvious and as would know its ? hazards owed, Patterson, supra; so, duty duty protect. If no McKeev. exists to is warn or Inc., Goodyear Co., not, might unless, & Fain Tire Rubber If then a exist 508; Phillips (Texas), particular plaintiff, 5 Cir. to the ought or he knew Gibson, (Texas), 5 Cir. Co. v. to have Petroleum known risk and im- is, many prudently voluntarily exposed it but in situations F.2d himself example, may be, Patterson, supra. .it. McKee v. For much different. Nat- may urally, gasoline, properly gas, labeled if a can of some other these same open inquiries be and obvious hazard must from be made as to it. general yet, appearance despite Obviously express we no views on what supplier capacity, a has no its destructive any, if the evidence will be on the retrial. since, liability for misuse a user at Whether, extent, and to what then date, expected dan- this late it is that the presents jury a case for action under the gers known, understood, ap- e., i. will principles here discussed is a matter for preciated. Cf. Waters-Pierce Oil v.Co. judge upon the trial trial its full Davis, Tex.Civ.App. 508, 60 S.W. development of all of the issues anew. Drug Cadwell, Company v. Tex. Reversed and remanded. refused; Civ.App., 237 S.W. writ Liggett Meyers Wallace, & Co. v. Tobacco HUTCHESON, Judge, specially Chief Tex.Civ.App., dis- writ concurring. missed. emphasizes necessity RIVES, Judge, dissenting. This for the Circuit identifying proof gree de- some reasonable Appendix gas. the toxic For the nature of *8 1. American Petroleum Institute only by identification can there be a ra- of [API] draft revision of Pre- Accident ought of tional test reasonably what the defendant 10, Rotary Drilling, vention Manual No. expected to have others plaintiff’s 1951. December know. This was a case, Patterson, by Hydrogen 2. Air affirmative pra. McKeev. su- Pollution Sul- since, phide pre- Rica, Mexico, in Poza on the record And so far evaluation 24, sented, only by 1950, of instant reasonable minds could con- November hydrogen McCabe, sulphide Chief, C. Explo- clude that this was Lewis & Fuels recognized en, safety appliances parties 26. all there were needed for proposed protection risks maximum of definite drilling and hazards Contractor’s em- prudent against injuries.” ployees and at least as to those expect known, specifically required owner would The schedule provide: put responsibility contract contractor Safety safety: devices, including proof tractor “N. fire Safety proof stove, lighting, injec- Precautions: “8. fire provide equipment exhausts, “Contractor shall and have tion on motor by masks, appliances safety available at times for use other all Con- employees engaged necessary prevention per- tractor’s fire or of ex- protection plosion formance of the work herein undertak- workmen.” Poisoning Hydrogen Sulphide Mines, United 13. Division, Bureau sives Aves, D., reprinted Interior, by M. C. M. and Texas Department of States George Medicine, Chief, Atmospheric from Texas State Journal of Clayton, D. Occupational 1929. March Unit Division Pollution Health Health, Public United States 14. The Causes and Prevention Agency, Security Service, Bureau Federal Hydrogen Poisoning, Sulphide Industrial Department of Mines, States United Department 19, U. S. Health Series No. Health Public United States Standards, Interior and Labor, Division of Labor Security Agency, Service, 1951. Federal 1940. Atmospheric Pollution Control 3. Safety 15. Health Industrial Cralley, Refineries, Lewis J. Directory Petroleum Handbook, Manufacturers Scientist, Public United States Senior Company, 1952. Hy- Service, Industrial American Health giene Toxicity Hydrogen Sulphide: 16. Its 11, Quarterly Volume Association Dangers, Division of Indus- Potential May 1, page 1950. Hygiene, Health U. S. Public Serv- trial Poisoning Hydrogen Sulphide aas 4. 56, ice, Reports Public Health Volume of Oil Sara the Production Hazard April 4, 684, page 1941. Davenport, United States Bureau 17. Low Con- The Determination of July 7329, Information Mines Circular Hydrogen Sulphide Gas centrations 1945. Method, Methylene by the Blue Bureau Hydrogen Handling 5. Method of Investigations Mines, Report of Sulphide Field Oil Gas in Elk Basin September 1949. Wyoming, Informa- of Mines Bureau Hydrogen Sulphide 18. Removal H. J. tion Circular East, Jr., October Synthesis Dioxide from Gas and Carbon Espach. Ralph H. Using TRI-Ethanolamine, Bu- DI and Rotary Drilling Acci- 6. Handbook on Investigations Mines, Report of reau Operating Safe dent Prevention and 4891, October 1952. Practices, American Association of Toxicology by 19. Law- Industrial Drilling Contractors, June Well Fairhall, Public rence Scientist Director Safety Manual, De- Production 7. Agency, Service, Security Federal Health Refining partment, & Com- Humble Oil Company, 1949. Williams and Wilkins May pany, 1953. Legal Pathology 20. Medicine Safety Card No. 8. Instruction Toxicology by Gonzales, Vance, Helpern, Safety Hydrogen Sulphide, National Appleton- MD’s, Umgerger, PHD, all Council. York, Century-Crofts, 1954. New Safety Data, American 9. Petroleum Occupational & 21. Medicine Indus- July Institute, No. Petroleum Johnstone, Hygiene, Rutherford trial containing Hydro- Handling Crude Oils Health; MD, in Industrial Consultant gen Sulphide (H2S) Gas. University California, Los Lecturer at Hy Toxicological Review, API 10. Company, Angeles, Mosby C. V. drogen Sulphide, 1948; Petro American Legal Toxicology & Medicine . *9 Institute leum MD, PHD, Ralph Webster, of Professor Poisoning Hydrogen Sulphide 11. Medicine, University Chicago, B. of W. Texas, Big Lake, Panhandle; the Texas Company, 1930. Saunders by Fields, McCamey, P. Oil W. Texas and Safety Refining 23. in Petroleum and Fowler, Mines H. of C. Bureau Yant and by George Armistead, Industries Related 2776, Investigations Report No. of Octo- Inc., Jr., 1949, Co., John G. & Simmonds 1926. ber Underwriters, New York. Oil Insurance Diagnos Occupation Hazards and 12. Safety Appliances Company, Mine 41, Division, 24. Signs, No. Bulletin tic Catalogue Safety Equip- of Industrial Standards, Department Labor, Labor 4 9 Catalogue 7B, ment, 1953. 1
55
Apparatus
Hydrogen Sulphide,
25.
Determina-
32.
An
for the
Hazards of
Gases,
August
Hydrogen Sulphide
Safety Information,
1942, page
tion of
22,
Shirey,
Mines, Report
published
Refining
by
Horne &
Bureau of
Humble Oil &
Investigations 3135,
1931. Co.
October
Quantitative Es-
26. A Detector for
33. The
Lime
Use of
in a
Solu-
Salt
Hy-
Removing Hydrogen Sulphide
timation of Low Concentrations of
tion for
drogen
Littlefield,
Sulphide by
Gas,
Mines,
from
Yant and
Natural
Bureau of
Re-
Berger,
Report
Mines,
Investigations
port
of In-
3178,
Bureau
1932.
June
vestigations 3276,
1935.
June
HUTCHESON,
Judge (specially
Chief
Comparison
Masks,
27.
Hose
of Gas
concurring).
Masks,
Breathing
Oxygen
Apparatus
and
increasing
by
This is another
Bourquin,
of the ever
S. H.
J.
Bu-
Katz and
J.
confusing
Mines,
Investigations confused
Report
and
suits
reau of
for dam
ages brought, by
fully
2489,
a
No.
June
covered and
1923.
compensated employee
independent
of an
Investigation
28.
Toxic Gases
contractor, against
compensation carry
High-Sulphur
Mexican
from
and Other
ing employer of the
It
contractor.
Report
Products,
Petroleums And
brought
allegations1
proven
*whichif
Mines,
Interior,
Department
Bureau of
would,
principles
under the
laid down in
the American
Petroleum Institute
controlling
decision,2
Texas
make the
Smith,
Sayers,
Jones,
Fieldner, Mitchell,
decedent, as
it,
to the work or a
Yant, Stark, Katz, Bloomfield,
Jacobs,
and
employee
independent
of an
con
231,1925.
Bureau of Mines Bulletin
itself,
tractor but of the defendant
Sulphide
Hydrogen
Content
29.
would, therefore, under the Texas Work
Producing
Oil
Fields
Gas
Some
Compensation Act,
men’s
recovery
prevent
Wilhelm,
Re-
Bureau of Mines
&
Investigations
Devine
sought.3
was, however,
It
tried
Septem-
port
No.
presented
and submitted
below
1931.
ber
argued here,
theory:
plain
Sulphide
Hydrogen
Peril in
Gas
30.
employer
independent
tiff’s
was an
con
by H.
Basin
V.
Permian
Panhandle and
Hayslip,
party,
tractor
company,
third
an oil
Refining
Oil &
Com-
Humble
plaintiff
which had invited
and his em
27, No.
pany,
& Gas Journal Volume
Oil
ployer
upon
premises
to come
its
for the
152, February
page
1929.
at
purpose
well;
an oil
that it
Drilling Opera-
31.
Practices in
Safe
had retained
of
there;
control
Institute,
tions,
Petroleum
American
Ac- the work
done
and that un
Sunray
Corp.
Manual No.
2nd
Allbritton,
Prevention
Cir.,
cident
Edition,
der
Oil
5
475, 476,4
1953.
187 F.2d
where the defendant
1.
the
job
*10
That
recting
connection with
well.
Zephyr
the said
Gulf Oil
supervision,
said
poration,
“That
[*]
said well
for
Corporation
said Gulf Oil
employees.
said
Zephyr
[*]
said
* * *
the said
and
[*]
said
Drilling Company whereby
the
Corporation,
entered into
Zephyr Drilling
Zephyr Drilling Company
employees
control,
controlling
Drilling Company
purpose
on a
well under
”
defendant.
were also
the
Corporation,
day
of
of
contract
the activities of
direction of
agents,
supervising,
the said Gulf
day
Company
kept
basis with
immediate
was drill
Oil
servants
on said
Cor
said
said
di-
in
2.
holding:
Refining Co.,
App.,
2d
Tex.
Cas. Ins.
writers
Skelly
cited
There
Lindsey
Standard
“We
21; Gipson
F.2d
at
87 S.W.2d
Oil Co. v.
it
agree
page
was said:
Co.,
that,
Insurance
Lloyds America,
205 S.W.2d
151;
142 Tex.
with the
Dennis v.
if
Cir.,
Bell v. Humble Oil &
Amacker,
N.& O. R.
864;
Martin v. Consolidated
Skelly
Sunray
Co. v.
57
“
charge
intendent,
drill-
appears
of the
T had
misapprehension
The second
”
ing.’
appellees
By
cor-
F.2d
the
[236
dissent
contrast
in the statement
the
a
rectly
brief, “Pursuant to
in their
state
61]:
independent
Gulf,
contract with
as an
man, only
“Wright
young
22
was a
drilling well”,
began
contractor, Zephyr
inexpe-
age.
youth
years
and
His
right
Judge
course,
Of
Rives is
etc.
if
observable
rience
have been
must
drilling
over the
that Gulf had control
they
job,
and
men on the
Gulf’s
well, then,
the author-
of the
as settled
that, like most oth-
must have known
against
ities,
supra, plaintiff’s
3
note
suit
days,
young
in
er
men
these
party
it as a third
must fail.
early part
manhood
of his
service,
military
spent
in his
in
case
Beginning
above
with the statement
Navy.”
which,
correct,
put
in
if
would
dissenting
employer,
misapprehension
attitude of an
That this is a
dealing
then,
think,
opinion
I
with the
as
record is shown
the fact that instead
though
Wright
incorrectly
pleading
matter
were a
proving
this
and
that
was
against
alleged
and,
employer,
in-
inexperienced,
petition
an
on the
suit
Wright
young
years
assumption
“was a
man 23
correct
that Gulf
drilling
premises
age, strong
healthy,
trol of the
and
and was
occupation
and the
trained
being
well,
upon assump-
and
trained in the
an the
decides the case
<of
roughneck
(1)
plaintiff
other duties tions:
as well as
that Gulf owed
oilfield
furnishing
drilling
duty
with the
and ex-
connection
due
exercise
care
ploration
wells”;
sup-
(2)
(emphasis
place work;
him
oil
and
safe
plied)
testimony
discharge
duty,
his mother
it did not
this
which I
spent
year,
record,
that he
one
fall of 1948
think
clear the
matter of
as a
Navy
law,
support.
the fall of
fact and
does not
Gulf was
shortly
discharge
Zephyr was,
employer,
after his
and the death not
n ofhis
got
father,
job
Zephyr’s liability
employer
he
in the oil field
ab-
as an
steadily
roughneck solute,
and worked
first as a
established and satisfied under the
working
man,
and later as a
Compensation
derrick
Texas Workmen’s
Law.
altogether
years. Neither,
there
three and one-half
since Gulf did not retain control
premises
work,
over the
or the
un-
was it
reached in
As to the conclusion
any duty
der
of care to maintain the
deference,
me,
dissent,
it seems to
premises
condition,
duty
in a safe
approach
upon
which the
to be based
an
Zephyr’s.
out,
indeed
does not bear
record
which,
espouse,
if
appellees
do not
my opinion,
In
the case for our deci-
maintained,
plaintiff’s re-
would defeat
very simple
sion
ais
one under
rule
ground
covery completely
at
applied
varying
laid down and
without
injury
work was
the time
that,
in the cases.5
is
This rule
in order
being
independent con-
under an
done
for
independent
owner
which has entered into an
McKee,
tract,
v.
Insurance Co.
Standard
contract
supra,
the cases cited
note
of an oil
to be held liable
person
a third
un-
the defendant was not
arising
for conditions
after
work
compensation
of Texas.
laws
der the
upon
entered
and as a
result
its
Judge
beginning
opinion,
done, it
At the
of his
must be shown that the owner
large
stating,
“Gulf exercised a
control
Rives
retained
over the
operations
measure of control over the
and therefore
owed a
well”,
Alford,
quotes
super-
maintaining
from
Gulf’s
care as to
due
a safe
Henger,
811; Sunray
Corp.
Allbritton,
5. Smith v.
148 Tex.
226 S.
F.2d
853;
Cir.,
476;
Thompson
W.2d
20 A.L.R.2d
5
187 F.2d
Elec
Drilling Co.,
Holt, Tex.Div.App.,
Cir.,
32;
tric Service
5
Co. v.
Rowan
197 F.2d
602;
Patterson,
Cagle McQueen,
Cir.,
186;
249 S.W.2d
McKee v.
Magnolia
Co., Cir.,
Tex.
Union
Carroll v.
Petroleum
Supply
Kelley,
Cir.,
Tank &
Co.
A were me that the issues
record convinces by skillful trial counsel understood entirely jury clear made and were experienced judge. trial the able and *16 ample to I evidence was think jury’s Indeed, verdict. sustain the just no other to me that verdict seems have been rendered.
could My brother, . indus- with commendable thoroughness, collected,
try
has
majority opinion,
appendix
to the
nature,
bibliography
lengthy
treachery
hydrogen
deadliness,
Wright
gas.
sulphide
William
had neith-
capacity
required
er
nor the leisure
investigation.
Indeed,
See
phide gas, or rather about its expe- field
than did the oil workers whose by decades. With
rience was measured my brothers, and with all deference learning, in- for their sincere admiration thoroughness, dustry, all of this
simply proves to me the wisdom of leav- questions such of fact to be deter- jurymen
mined nearly put twelve who can more positions themselves in the thereby parties and reach a common-
sense, practical, just conclusion. To
my mind, pro- the Seventh Amendment sanctity verdict, their
tects
judgment thereon should entered be af-
firmed. therefore, respectfully
I, dissent. way avoided, true, And could have been isn’t could not “Q. right.” tragedy surface and sir? That’s come this A. have