Maggio v. A. J. Toups Co.

153 So. 2d 437, 1963 La. App. LEXIS 1661
CourtLouisiana Court of Appeal
DecidedMay 3, 1963
DocketNo. 5847
StatusPublished
Cited by1 cases

This text of 153 So. 2d 437 (Maggio v. A. J. Toups Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maggio v. A. J. Toups Co., 153 So. 2d 437, 1963 La. App. LEXIS 1661 (La. Ct. App. 1963).

Opinion

REID, Judge.

This action for personal injuries arose out of an explosion and fire which occurred at the Wyandotte Chemical Corporation Plant in Ascension Parish on September 10, 1958. The plaintiff, Sam Maggio, was employed by the Fluor Corporation as a pipe fitter. Fluor had a contract with Wyandotte to construct a chemical plant at Geismar, and, as the prime contractor, entered into a subcontract with A. J. Toups Company, Inc., under the terms of which Toups was to line the interior of a number of large tanks designed to store various chemical compounds.

On the day in question the plaintiff was working on a scaffold some six and one-half feet above ground at a point located some twelve to fifteen feet from the man hole entering tank number 325, one of the tanks the A. J. Toups Company, Inc., was lining. At approximately 3:00 P.M. there was an explosion and fire in this tank and the force therefrom cast the plaintiff to the ground and caused him to suffer certain injuries which he claims are severely painful and disabling.

The plaintiff’s petition named A. J. Toups Company, Incorporated, its insurer American Liability Insurance Company, and two other defendants, the Wyandotte Chemical Corporation and the Chicago Bridge and Iron Works. Wyandotte Chemical was dismissed upon exceptions of no cause and no right of action.

The Lower Court rendered judgment in favor of the plaintiff, Sam Maggio, and against the defendants A. J. Toups Co., Inc., and American Mutual Liability Insurance Co., in solido in the sum of $22,620.63 together with legal interest from date of judicial demand until paid and all costs. This is broken down to an award of $14,000.00 for loss of earnings, $7500.00 for. physical pain and suffering and mental anguish, and medical expenses in the sum of $1120.63. The judgment further recognizes the claim of the Intervener Continental Casualty Company in the sum of $7878.86 plus any future workman’s compensation paid by it to the plaintiff and ordered the same paid by preference. The judgment further dismissed all claims against Chicago Bridge and Iron Company.

From this judgment the plaintiff, Sam Maggio, the defendants A. J. Toups Company, Inc., and American Liability Insurance Company have appealed devolutively.

The plaintiff contends that an employee of the defendant, one Charles A. Henry, was guilty of negligence which proximately caused the explosion herein sued upon in that Henry undertook to spray the inside of the tank with a highly inflammable compound while using an electric light and extension cord which was “dangerous, defective, and unfit” for such purposes and further, he failed to use an essential safety device, a blower fan, to exhaust fumes from the tank. The absence of the blower fan is [439]*439not contested. The defendants contend the electric light and extension cord were not defective hut if they were defective defendants are absolved from responsibility because A. J. Toups furnished the rig by the Fluor Corporation, plaintiff’s employer. The plaintiff attempted to show Henry triggered the explosion by breaking a light bulb or otherwise causing a spark when he emerged from the tank in which he had been applying a substance known as “Neoprene 100” for approximately two (2) hours prior to the explosion. No where in the record is there any proof of the actual cause of the spark which triggered the explosion but the fact of the explosion bespeaks the spark which caused it.

Charles A. Henry testified he had been spraying in the tank for approximately two hours prior to the explosion; he was familiar with the printed instructions concerning the use of “Neoprene 100” which contained the following admonitions:

“Mix resin with accelerator in a well ventilated area. Keep all flames away from working area. Always supply adequate fresh air during application. In confined areas such as tank lining application, workmen must wear airline respirators. The solvents in Neoprene 100 primer and finish are flammable.”

He testified Toups ordinarily did not use such a “jerry built” device as the light and extension cord such as he was using on the day in question, but instead used an explosive-proof safety light when applying Neoprene 100. He further testified it was customary to use a blower fan to exhaust the fumes from the tank but he did not do so on the occasion in question, because he did not consider two hours a sufficient time to necessitate the use of the blower. However, in his deposition taken prior to trial he stated he did not use the blower because some of his co-workers were using them in other tanks and one was not available for him. Henry testified he heard a rum.bling noise just as he climbed out of the tank and he immediately began running because he knew of the danger involved if the fumes were on fire. He further testified he had the light bulbs in his left hand and they were burning when he emerged from the tank. However, two eyewitnesses to his departure from the tank both testified he did not have the light bulbs in his hand and if he had the lights in his hand they would have seen them.

The two witnesses who testified Henry left the tank without the light bulbs in his hand also testified as he exited from the man hole Henry kicked something hung up in the doorway in an effort to untangle it. The “jerry built” electrical apparatus was an extension cord containing two bulb sockets at the end opposite the electrical outlet instead of one socket made in a “Y” form which would hold the bulbs apart. There was no protection surrounding the bulbs such as mesh wire grill, and after the accident it was discovered the bulbs were broken. Henry testified the bulbs broke when he dropped the cord to run away from the tank.

Mr. Christofferson, a qualified civil engineer and member of the Steel Structures Painting Counsel Research Committee, testified at length with respect to the solvent xylon, a highly volatile, flammable and explosive hydrocarbon compound, used in Neoprene 100. He explained any temperature above 75° F. would cause vapors to be given off from the solvent which would form a combustive mixture. It is clear the temperature on September 10 at 3:30 P.M. inside the steel tank in question was considerably above 75° F. The outside temperature at the time was 88° F., and the relative humidity was 40%. Mr. Christofferson stated whenever a mixture of xylon vapor becomes as concentrated as one to seven percent, i. e. one to seven parts of xylon vapor to 100 parts of air, an explosion will result if a spark is applied. He testified exhaust equipment was standard and necessary safety equipment and it is recommended to use all spark proof equipment. He stated proper ventilation would prevent [440]*440the possibility of an explosion in that the concentration of xylon in the air will remain less than one percent.

The type of accident involved in this suit ordinarily does not occur when due care has been exercised. The principal enunciated in the case of Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La.App. 603, 131 So. 709, is applicable to the case at bar. In that case the Court found the actual cause of an explosion had not been shown, but went on to hold as follows:

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153 So. 2d 437, 1963 La. App. LEXIS 1661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maggio-v-a-j-toups-co-lactapp-1963.