Franklin v. Skelly Oil Co.
| Decision Date | 10 March 1944 |
| Docket Number | No. 2827.,2827. |
| Citation | 141 F.2d 568 |
| Parties | FRANKLIN et al. v. SKELLY OIL CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
F. A. Rittenhouse, of Oklahoma City, Okl. (John F. Webster, Walter D. Hanson, and Olive R. Rittenhouse, all of Oklahoma City, Okl., on the brief), for appellant.
James W. Cosgrove and Alvin F. Molony, both of Tulsa, Okl. (W. P. Z. German, of Tulsa, Okl., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
On December 20, 1941, an explosion occurred in the home of appellant Quay Franklin, resulting in the complete destruction of the residence and its contents. The insurance companies, appearing as appellants herein, settled the liability for the loss under their respective policies and became subrogated to the extent thereof. Whereupon, Franklin and his wife, individually, and the insurance companies, as subrogees, instituted this action against the appellee, Skelly Oil Company, to recover the value of the residence and its contents, on the grounds that Skelly negligently installed a butane gas system in the residence, causing the explosion and fire. At the conclusion of all the evidence, the trial court sustained a motion to dismiss because of its insufficiency, and from the judgment dismissing the cause, appellants have appealed, contending that the submitted evidence presented a jury question.
According to the allegations of the petition, on May 13, 1941, Skelly Oil Company entered into a contract with one Mitchell, the former owner of the house, by the terms of which Skelly undertook to install a complete butane gas system for the residence, and in so doing connected the butane gas with the pipes and connections which had been previously installed as a natural gas system for domestic purposes. It was alleged that the pipes and connections adaptable for a natural gas system were wholly unsuited and unsafe for the transmission and distribution of liquefied or butane gas as Skelly well knew, and as a result the butane gas leaked through the connections causing the explosion and fire. Skelly admitted the installation of the butane system, but denied that the pipes and connections already installed in the residence were unsuited or unsafe for the transmission of butane or liquefied gas.
The case was presented by the appellants on the specific theory that the fittings and connections on the pipes, previously used for natural gas purposes, were sealed or cemented by a material or compound of white lead and oil, containing an organic oil base, which when subjected to a liquefied gas would dissolve, leaving the white lead substance porous and thereby permitting the gas to escape through any openings in the threaded pipe.
On this point appellants' witness Porter testified that he examined the premises for the purpose of bidding on the installation of a liquefied gas system in competition with Skelly. He observed the pipes in the basement of the residence, "chipped" a white substance from a joint of pipe, and from a casual examination determined it to be a compound of white lead and oil — that white lead and oil is soluble when subjected to liquefied gas, hence he concluded that the pipes and fittings, originally installed for a natural gas system, were unsuited and unsafe for a liquefied or butane system. He did not make a chemical or scientific analysis of the substance "chipped" from the joints of pipe, and his conclusion that white lead and oil, containing an organic oil base, was used in the fittings in question is based solely upon his observation of the small particle of material "chipped" from one of the joints.
Appellants' witness DeBarr, testifying as a chemist, stated in substance that any lead compound with an organic or vegetable oil base would dissolve in the presence of a liquefied gas, leaving the lead aggregate in a powdery form, thereby permitting the gas to flow through a space which had been sealed or cemented by the compound. And he testified that in his opinion pipes and fittings sealed or cemented with a compound of white lead and oil, containing an organic or vegetable oil base, were unfit for the transmission of butane gas, but DeBarr did not examine the fittings or the compound used in the residence in question — his testimony was purely hypothetical.
The probative force of this testimony as evidence of negligence, when taken at its full value, is exceedingly doubtful, however we need not now consider its prima facia sufficiency. Appellants' witness Heath testified that in September, before the explosion in December, 1941, he sold the Franklins an automatic hot water heater which was installed in the residence for the consumption of butane gas. The heater was actually installed by a Mr. Rhine, who testified that the installation of this particular appliance required at least six different pipe fittings and connections; that in making these connections he used a compound of white lead and raw linseed oil, which according to appellants' chemist is an organic oil and subject to dissolution in the presence of liquefied gas. Other appliances such as stoves and a floor furnace were installed subsequent to the installation of the butane system, but in each instance there was testimony to the effect that a compound especially adaptable for the transmission of butane gas was used on the connections.
Having undertaken to install a butane system for the owner of the residence, it became Skelly's legal duty to install the system in a manner adapted to the purpose for which it was intended to be used. In that respect it was held to a standard of care commensurate to the particular hazard involved, but the mere fact that an explosion occurred in the Franklin residence on December 20, 1941, creates no presumption that the explosion was caused by the negligence of Skelly. It is of course incumbent upon the appellants to prove not only that Skelly was negligent in the installation of the butane system, but that such negligence was the proximate cause of the damage which they seek to recover.
There is no direct testimony in this record to the effect that the explosion and fire was caused from a gas leak in the house. Neither is there any testimony tending to show from what particular joint or connection the gas escaped to cause the explosion and fire, if such was the cause, and unless the allegations of the petition and the theory of the appellants are supported by competent evidence, and the reasonable inferences to be drawn therefrom, there is no issue to submit to the jury, and it becomes the duty of the court to decide the cause as a question of law. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Alexander v. Standard Accident Ins. Co., 10 Cir., 122 F.2d 995; Brown v. Capital Transit Co., 75 U.S.App.D.C. 337, 127 F.2d 329. The verdict of a jury must be based upon something more than mere speculation and conjecture. It is not sufficient to show a set of circumstances bringing the theory of appellants within the realm of possibilities, nor can the theory itself furnish the deficiency; the evidence must bring the theory to the level and dignity of a probable cause. Gunning v. Cooley, supra; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Lowden v. Friddle, 189 Okl. 415, 117 P.2d 533.
Conceding therefore, without deciding, that the connections on the pipes previously used for the natural gas system were sealed or cemented by a substance or compound containing a soluble base unsuited and unsafe for butane gas, yet it remains to be determined whether the explosion was caused by a leak from one of the connections for which Skelly is responsible or whether the explosion was caused from a leak in a connection of the pipe made by Rhine, which was admittedly sealed or cemented by a compound or substance containing a soluble base. In this posture the evidence at most generates two...
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