Mobil Chemical Company v. Bell

This is a common law damage suit for personal injuries sustained by Edward L. Bell and J. A. Hurley, employees of an independent contractor constructing a large chemical plant for Mobil Chemical Company, when acetic acid escaped from a portion of the plant already completed and turned over to Mobil. A jury failed to find that Mobil was guilty of specific acts of negligence but answered res ipsa loqui-tur issues favorably to the plaintiffs.1 Based on these findings, judgment was entered that each plaintiff recover $12,000 from Mobil. The court of civil appeals has held, inter alia, that the res ipsa theory was improperly submitted to the jury and has reversed and remanded for a new trial. 502 S.W.2d 564. We disapprove of the holding of the court of civil appeals with respect to submission of res ipsa cases but find ourselves compelled to affirm the judgment of remand since plaintiffs have not sought relief from the remand by applying for a writ of error.

As in any res ipsa case, the particular facts surrounding the event are extremely important. This case involves a plant being constructed to manufacture ter-ephthalic acid [TPA]. The plant basically consists of two units, - designated Unit A and Unit B, .of identical design with several common vessels which make them interrelated. Each unit is designed to produce TPA in a two step process. First, paraxy-lene is oxidized in the oxidation section to form crude TPA, a solid precipitate. Then this precipitate is mixed into a slurry with an acetic acid carrier and pumped to the leach section where the TPA is purified by a heating process. This entire operation is conducted under varying degrees of pressure. The area where the highest pressure is expected is the feed line leading to the leach section where normal operating pressures vary from 425 to 650 pounds per square inch [p. s. i.].

At this point a pressure relief mechanism is included to protect the system from pressure surges that may occur during operation. Since this lawsuit arose from a *249failure of this mechanism, a fairly detailed description is necessary. A simplified diagram of the pressure relief mechanism is reproduced below.

The feed line is three or four inches in diameter. From this a one inch pipe leads up to a relief valve, which is designed to open when the pressure exceeds 850 p. s. i. and relieve the pressure by allowing some of the fluid to escape into a larger pipe from which it eventually returns to the feed line. Since the feed line normally carries a slurry, there is a danger of the solid matter in the slurry accumulating in and clogging the relief valve mechanism. To prevent this the one inch pipe leading to the relief valve contains a rupture disc blocking access to the relief valve. Under normal operations this disc will prevent the slurry from entering the pressure relief mechanism. However, if a pressure surge exceeds 850 p. s. i. the disc is designed to rupture, allowing the slurry to travel up the one inch pipe to the relief valve, which relieves the pressure. As an additional precaution, a second rupture disc is inserted in the one inch pipe a short distance above the first one and serves the same purpose as the first.

A pressure gauge is attached between the two discs to serve as a “tattletale” and tell operating personnel that the discs have been ruptured. The attachment is made by means of quarter inch pipe which runs horizontally from the one inch pipe to a valve [Valve A] and then on to a vertical “T” connection. On the top opening of the “T” a 0-1,000 p. s. i. pressure gauge is inserted and the bottom opening has a bleeder valve which is kept closed except to drain fluid from the gauge. During normal operations Valve A is kept open and the pressure gauge reads 0 p. s. i. since the lower rupture disc keeps the pressurized slurry out of the relief mechanism. However, if the pressure exceeds 850 p. s. i., the disc ruptures, the slurry comes into the relief mechanism, and the pressure gauge registers a positive reading, informing operating personnel that the discs should be replaced before the relief valve becomes clogged.

Mobil Chemical Company had contracted the design and construction of the plant to an independent contractor, C. F. Braun and Company. As each section of the plant was completed, it was tested and turned over to Mobil. By March 21, 1966 C. F. Braun had completed all of Unit A and conducted a hydrostatic test under the supervision of Mobil. The hydrostatic test consisted of filling the system with water *250under pressure substantially above operating level to check for leaks. Unit A passed this test and was accepted by Mobil. Mobil also conducted a visual inspection of the entire system and was satisfied that the Unit was assembled properly and that all equipment was in place. Mobil then began the process of “commissioning” the Unit. This consisted of operating the equipment first with water and later with acetic acid, but without actually producing TPA.

Shortly after noon on April 4, 1966 a pressure surge caused the pressure in the feed line to exceed 850 p. s. i. At this time the pressure relief mechanism worked perfectly — the discs ruptured, the relief valve relieved the pressure, and the pressure gauge indicated that the discs were ruptured. Mobil maintenance personnel then replaced the discs, bled the acetic acid out of the relief mechanism, and continued the commissioning process. Just before 5:00 P.M., April 5, 1966 the feed line was again overpressured. This time, however, the pressure relief mechanism failed and acetic acid under high pressure spurted out of the quarter inch pipe and into the atmosphere, creating both a danger to personnel and a fire hazard. As soon as he realized where the leak was, Jerry Griffith, Mobil’s process superintendent, put on protective equipment, crawled out on the feed line and stopped the leak by closing Valve A.

Plaintiffs Bell and Hurley were employees of C. F. Braun and were working on Unit B of the plant at a point some 70 feet from the rupture. Both were exposed to strong acetic acid vapor and suffered respiratory damage for which they seek recovery. They alleged specific acts of negligence in failing to either have the pressure gauge in place or close Valve A and in the alternative pleaded res ipsa loquitur. The jury failed to find that the specific acts of negligence were committed and these findings have not been attacked on appeal. The jury did find, however, that Mobil failed to use ordinary care in maintaining the plant and that such failure was a proximate cause of the incident in question. The district court overruled Mobil’s motion for judgment non obstante veredic-to and entered judgment for plaintiffs.

The court of civil appeals agreed that the facts of the case raise the doctrine of res ipsa loquitur but concluded that in res ipsa cases where there is evidence of causes other than the defendant’s negligence, the jury should be asked if it finds from a preponderance of the evidence that:

“1. The character and circumstance of the accident is such as to lend reasonably to the belief that, without negligence, it would not have occurred.

“2. The thing that caused the injury is shown to have been under the management and control of the defendant.

“3. It is more reasonably probable that the accident was caused by defendant’s negligence than not.” 502 S.W.2d 567-568.

We granted writ of error in this case to examine the method of submitting a res ipsa loquitur case to the jury. We conclude that the formulation suggested by the court of civil appeals is not proper since it confuses the roles of judge and jury.

Before discussing the method of submission, it is helpful to focus on exactly what is encompassed within the doctrine of res ipsa loquitur. The phrase, meaning “the thing speaks for itself,” was used by Pollock, C. B., in discussing a barrel of flour which fell from the defendant’s window, Byrne v. Beadle, 2 H. & C. 722, 159 Eng.Rep. 299 (Ex.1863), and has come to signify that in certain limited types of cases the circumstances surrounding an accident constitute sufficient circumstantial evidence of the defendant’s negligence to support such a fact finding. See Morris, Res Ipsa Loquitur in Texas, 26 Texas L. Rev. 257 (1948). These cases are those in which the circumstances surrounding the event are such that the mere occurrence of the accident supports reasonable inferences that there was negligence involved and *251that the defendant was the negligent party. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935); W. Prosser, Law of Torts § 39 at 211-214 (4th ed. 1971).

The res ipsa doctrine is applicable when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Owen v. Brown, 447 S.W.2d 883 (Tex.1969); Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex.1965); McCray v. Galveston, H. & S. A. Ry. Co., 89 Tex. 168, 34 S.W. 95 (1896); 2 F. Harper & F. James, The Law of Torts § 19.5 (1956); W. Prosser, supra at 214. The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party. See Bond v. Otis Elevator Co., supra. As such the “control” requirement is not a rigid rule that the instrumentality must have always been in the defendant’s possession or even that it must have been in the defendant’s control at the time of the injury. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968 (1944). It is sufficient if the defendant was in control at the time that the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that he was the negligent party. Birmingham v. Gulf Oil Corp., 18 Tex. Sup.Ct.J. 59 (Nov. 16, 1974); Morris, Res Ipsa Loquitur in Texas, supra at 263-268; W. Prosser, supra at 218-221. The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant’s door. 2 F. Harper & F. James, supra at § 19.7.

In Texas it is well settled that res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred upon proof of the factors stated above. Owen v. Brown, supra; Honea v. Coca Cola Bottling Co., supra; Wichita Falls Traction Co. v. Elliott, supra; Texas & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3 (1910). Texas courts have quoted with approval the following language of the U. S. Supreme Court in Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815 (1913):

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.”

As tersely put above, the effect of successfully invoking the res ispa doctrine is that the plaintiff can survive no-evidence procedural challenges — he has produced some evidence of the defendant’s negligence. He is in the same position as any other plaintiff who has made out a case for the jury. No presumption of the defendant’s negligence arises; the jury is merely free to infer negligence. See Sudduth v. Commonwealth County Mutual Insurance Co., 454 S.W.2d 196 (Tex.1970). The plaintiff continues to have the burden of persuading the jury by a preponderance of all the evidence that the defendant was negligent. Wichita Falls Traction Co. v. Elliott, supra; St. Louis Southwestern Ry. Co. of Texas v. Parks, 97 Tex. 131, 76 S.W. 740 *252(1903); Morris, Res Ipsa Loquitur in Texas, supra at 768-772. While it is often said that res ipsa places the burden of going forward with the evidence upon the defendant, it is the rare res ipsa case where the defendant is in danger of a directed verdict if he chooses not to explain the accident. Hensley v. Fort Worth and Denver Railway Co., 408 S.W.2d 761 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n.r.e.). This is because the inferences to be drawn from the circumstances of the accident are within the province of the jury, not the court. Only in extraordinary circumstances does the mere occurrence of the accident so strongly compel a conclusion that the defendant was negligent that the jury could not reasonably find otherwise. See Moore v. Atchison, T. &. S. F. R. Co., 28 Ill.App.2d 340, 171 N.E.2d 393 (1960); Annot, 97 A.L.R.2d 511 (1964). Of course, in any case the defendant may, if he chooses, produce evidence to lessen the impact of the plaintiff’s circumstantial evidence. See W. Prosser, supra § 40 at 228-229.

In order to rely on the res ipsa doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the “type of accident” and “control” factors are present. This is not so much a rule of law as it is a rule of logic — unless these factors are present, the jury cannot reasonably infer from the circumstances of the accident that the defendant was negligent. In a great many cases the plaintiff can rely upon general knowledge to prove the accident in question is the type of accident which does not ordinarily happen in the absence of negligence. Morris, Res Ipsa Loquitur in Texas, supra at 260-263, n. 14; 2 F. Harper & F. James, supra § 19.6. However, expert testimony on this factor is clearly admissible and may be necessary to the plaintiff’s case. McCray v. Galveston, H. &. S. A. Ry. Co., 89 Tex. 168, 34 S.W. 95 (1896); Simpson v. Dallas Ry. & Terminal Co., 143 S.W.2d 416 (Tex.Civ.App.—Dallas 1940, writ dism’d judgmt cor.). The plaintiff must also prove that the instrumentality was under the management and control of the defendant. Owen v. Brown, 447 S.W.2d 883 (Tex.1969). As previously discussed, this requirement must be interpreted in the factual setting of each case. Disputes may arise as to what instrumentality caused the injury, when the negligence, if any, occurred, and who was in control at that time. In any event, the plaintiff must produce evidence from which the jury can reasonably conclude that the negligence, if any, is attributable to the defendant.

While the plaintiff must produce evidence enabling the jury to reasonably conclude that the two required factors are present, this does not mean that issues inquiring about these factors must or should be submitted. The pertinent question for the jury’s determination is whether the defendant was negligent. The “type of accident” and “control” factors are just subis-sues of this ultimate issue. The court of civil appeals below has held that in a res ipsa loquiHir case the trial court must submit these subissues if they are raised by the evidence. We disapprove this holding. There may be justification for submitting one or both of these subissues in a particular case in order to focus the jury’s attention on the matter. However, we believe the better practice in the great majority of cases is to submit only the ultimate negligence issue. If the trial court is satisfied that there is probative evidence of both factors, he should ask the jury whether the defendant was negligent. A finding of negligence necessarily includes findings that the accident would not ordinarily occur in the absence of negligence and that the defendant was in control of the instrumentality at the appropriate time. Submitting these subissues to the jury is unnecessary, duplicitous, and may confuse the jury and divert its attention from the real issue. See Note, Submission of “Defendant’s Exclusive Control” in Res Ipsa Loquitur Special Issue Charge, 36 Texas L.Rev. 696 (1958).

*253The court of civil appeals has also held that when the defendant’s rebutting evidence suggests other causes of the accident than the defendant’s negligence, it becomes a jury issue whether, “It is more reasonably probable that the accident was caused by defendant’s negligence, than not.” We do not agree. Not only is the trial court not required to submit such an issue but we believe it would be error to do so. The issue as framed asks the jury if it would be reasonable to find the defendant negligent. This is a determination that the trial court must make before submitting the negligence issue to the jury. Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502 (1885). If the issue was intended as a predicate to asking whether the defendant was negligent, it is a usurpation of the trial court’s traditional function of determining whether fact findings can be reasonably made. If the issue was intended as a substitute for the usual negligence issue, it is inferior to and adds nothing to the traditional formulation. When the jury is asked if it finds a fact by the preponderance of the evidence, the elements of “reasonably” and “more probably than not” are necessarily included.

We therefore conclude that the method of submitting res ipsa-loquitur cases formulated by the court of civil appeals is not a required or even a proper method of submission. The court of civil appeals erred in holding that the trial court improperly submitted the res ipsa loquitur issues in this case.

Besides complaining of the court of civil appeals’ formulation of res ipsa issues, Mobil asks this court to render judgment in its favor on the grounds that Plaintiffs Bell and Hurley failed to make out a res ipsa loquiUir case or, if they did, Mobil completely rebutted it. These both are essentially “no evidence” points arguing that there is no evidence to support the jury’s finding that Mobil was negligent. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

The first complaint turns on whether the plaintiffs ever successfully invoked the res ipsa doctrine by producing probative evidence of both required factors. Both lower courts have held that the facts of this case raise the res ipsa doctrine. We agree. The facts show that the entire plant was designed as a closed system so that acid vapors would not be released into the atmosphere. The relief mechanism was included to prevent the same sort of occurrence as happened here. It is true that this was a new plant just being started up. However, we are not dealing with a minor leak of the type that can hardly be avoided with new equipment, but a violent rupture spewing acid 30 feet into the air. It seems reasonable to infer that due care could have prevented the accident. And since Mobil had accepted the Unit only after extensive tests, had been in control of the equipment for at least two weeks, and had been performing additional tests and maintenance, it is reasonable to infer that if negligence was involved, Mobil was the negligent party. From the circumstances of the accident, a jury could reasonably decide that Mobil’s negligence probably caused the accident and the resulting injuries. We conclude that Plaintiffs Bell and Hurley made out a res ipsa case and therefore satisfied their burden of producing some evidence of Mobil’s negligence.

The second complaint argues that Mobil’s rebutting evidence completely negated the plaintiffs’ res ipsa case and made it unreasonable to infer that Mobil’s negligence caused the accident. Mobil’s evidence consisted primarily of testimony by Marvin Fannin, a chemical engineer with Mobil, who saw the equipment after the accident. He testified that the quarter inch pipe broke between Valve A and the pressure gauge, which caused the acid to spew out horizontally. He theorized that the pipe might have broken because (1) it was defectively manufactured, (2) the metal crystallized when threads were cut improperly, or (3) the metal crystallized when the pipe was overly tightened upon installation. He *254explained that the pipe could have been further weakened by operational vibrations until it was so weak that it broke under the sudden pressure.

While the jury was certainly entitled to believe this explanation, it was not compelled to. There was testimony from both Plaintiff Bell and Jerry Griffith, Mobil’s process superintendent, that the acid was spewing straight up, indicating that the rupture was located at the pressure gauge connection instead of the quarter inch pipe and thus discrediting Mobil’s entire theory. Since the same mechanism had worked properly the day before, the jury could have concluded that any structural weaknesses were more probably caused by Mobil’s maintenance personnel in replacing the rupture discs, etc., than by causes prior to Mobil’s control of the Unit. The jury also could have believed that Mobil’s testing procedures were inadequate or negligently followed if it did not discover such structural weaknesses before pumping acid at high pressure through the system. In short, the jury could still reasonably infer from the circumstances of the accident that the accident was probably caused by Mobil’s negligence. Therefore, we hold that the trial court did not err in submitting the res ipsa issues to the jury. Roberts v. Texas & P. Ry. Co., 142 Tex. 550, 180 S.W.2d 330 (1944); Yarbrough’s, Inc. v. McNabb, 222 S.W.2d 274 (Tex.Civ