Parkinson v. California Company

• Decision Date: 11 April 1956
• Docket Number: No. 5169.,5169.
• Citation: 233 F.2d 432
• Parties: Preston A. PARKINSON, Appellant, v. The CALIFORNIA COMPANY, a corporation; and Stanolind Oil and Gas Company, a corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

233 F.2d 432 (1956)

Preston A. PARKINSON, Appellant, v. The CALIFORNIA COMPANY, a corporation; and Stanolind Oil and Gas Company, a corporation, Appellees.

No. 5169.

United States Court of Appeals Tenth Circuit.

March 15, 1956.

Rehearing Denied April 11, 1956.

George L. Barnard, Idaho Falls, Idaho (E. N. Moody, Jackson, Wyo., was with him on the brief), for appellant.

John P. Akolt, Denver, Colo. (John P. Akolt, Jr., Robert A. Dick, Denver, Colo., Wilfrid O'Leary, Cheyenne, Wyo., were with him on the brief), for appellee, The California Co.

Albert E. Nelson, Rock Springs, Wyo. (A. G. McClintock, Cheyenne, Wyo., was with him on the brief), for appellee, Stanolind Oil and Gas Co.

Before BRATTON, Chief Judge, HUXMAN, Circuit Judge, and CHRISTENSON, District Judge.

CHRISTENSON, District Judge.

This is an appeal from a judgment of the United States District Court for the District of Wyoming dismissing on motions of the respective defendants an action brought by plaintiff, Preston G. Parkinson, against The California Company and Stanolind Oil and Gas Company for their alleged negligence in failing to "malodorize" propane gas which they had represented, by a delivery ticket accompanying the shipment supplied to plaintiff's immediate vendor, had been malodorized, and the explosion of which caused substantial injury to the person and property of plaintiff. The theory of plaintiff was that if an odorizing agent had been added to the gas, as reasonable care required, its escape from the tanks on plaintiff's premises would have been detected before any explosion would have occurred. The trial court apparently adopted defendants' view that the record before it conclusively demonstrated that no negligence of theirs, but rather the negligence of the retailer and its agent as an independent intervening cause was responsible for the explosion. The questions thus posed involve the sufficiency of the complaint to state a claim on which relief can be granted; the duty, if any owed by defendants to plaintiff; the effect of pleadings in a prior action between the same parties on a similar claim in the state court and the rule of causation to be applied in this type of case. These questions can best be understood and determined upon a review of the proceedings and pleadings in both actions. The parties will be referred to herein as "plaintiff" and "defendants" according to their designation in the trial courts.

In his complaint in the United States District Court the plaintiff alleged in substance that he resided and operated a cafe and bar owned by him in Teton County, Wyoming; that in this connection he used for heating purposes propane gas manufactured and distributed by the defendants, The California Company and Stanolind Oil and Gas Company, which he obtained from the Teton Gas and Appliance Company, a local retailer (not a party to the action in the federal court); that by reason of the inherently dangerous nature of propane gas, reasonable care required the addition to it of a suitable odorizing agent commonly known as a "malodorant" to indicate positively by distinct odor the presence of gas in quantity within the limits of combustibility in the event of any escape of such gas from its containers, and that reasonable care and caution required such malodorant to be added by the producers and distributors at such time as gas is delivered to retail dealers when intended for resale to domestic consumers; that for more than two years prior to plaintiff's damage, the defendants regularly supplied the Teton Gas and Appliance Company with propane gas, ordinarily with a proper odorizing agent added, which was indicated by notations upon delivery tickets; that in May, 1953, the defendants, well knowing that the same was intended for domestic use where proper odorization was necessary in the exercise of ordinary care, sold and delivered a quantity of propane gas to the Teton Gas and Appliance Company which had no malodorant added or which, at best, had an amount insufficient to be detected in the event of its escape from its containers, notwithstanding that it was represented by the defendants through their placing of information to that effect on the delivery ticket that sufficient quantities of malodorant had been added; that a quantity of this gas which had been sold by the retailer to the plaintiff escaped from the containers in which it had been placed on plaintiff's premises in some manner unknown to plaintiff; that upon discovering that he had no hot water, plaintiff called the Teton Gas and Appliance Company, which sent a workman to investigate; that this workman discovered the pilot light on the water heater to be out; that due to the negligence of the defendants in failing to properly odorize said gas, there was no odor of escaped gas apparent to the workman, who thereupon attempted to light the pilot light of the water heater, setting off an explosion, and that this explosion was proximately caused by the negligence of the defendants "in failing to add such odorizing agent, or a sufficient amount thereof, to said propane gas at or prior to the time of the delivery thereof to said Teton Gas and Appliance Company, and in misrepresenting to said Teton Gas and Appliance Company that such odorizing agent had been added, when in fact the defendants had failed to add the same * * *."

To this complaint the defendants interposed separate motions to dismiss which were granted by the trial court generally without specifying reasons. Each motion was based upon the grounds that (1) the plaintiff's complaint failed to state a claim on which relief could be granted; and (2) the plaintiff had no claim against the defendants upon which relief could be granted by reason of circumstances which may be summarized as follows: That prior to the filing of the suit in the federal court, the plaintiff instituted an action based upon the same claim in the District Court of the Third Judicial District, County of Teton, State of Wyoming, in which action The California Company and Stanolind Oil and Gas Company, as well as Teton Gas and Appliance Company, were defendants, copies of the verified petition filed in the state court being annexed to the defendants' motions; that thereafter, The California Company and Stanolind Oil and Gas Company filed demurrers to the petition and that such demurrers were sustained; that the plaintiff did not, within the time allowed by the order sustaining the demurrers, or at all, file an amended petition, but did file his motion to dismiss said action without prejudice as against The California Company and Stanolind Gas and Oil Company, and that such motion, without the consent of the defendants, was granted; and that said cause is still pending and undetermined in the state court as against Teton Gas and Appliance Company. The record of the foregoing allegations was supported by affidavit accompanying the motions to dismiss. No counter showing was made by the plaintiff before the trial court.

Looking now to the plaintiff's verified petition in the Wyoming state court, as referred to in defendants' motions, its allegations were for practical purposes the same as those of the federal court complaint, except that it named as a party, and charged with negligence, also Teton Gas and Appliance Company, the retailer. Plaintiff's theory at that time is indicated by allegations under oath in the state court action to the effect that The California Company manufactured a quantity of propane gas and shipped it to Stanolind without properly malodorizing it, although the shipping tag attached to the container stated that a malodorant had been added; that Stanolind received the gas and without checking it for malodorant sold a quantity of it to Teton Gas and Appliance Company, who allegedly accepted the gas and without further checking as to the presence of any malodorant, delivered part of it to the plaintiff by connecting the tank containers to a water heater and stove, which had previously been purchased by plaintiff from Teton, which installed them on plaintiff's premises; that all three defendants were aware of the inherent dangers of such gas, its propensity to escape confinement, and the difficulty of detecting its presence unless a malodorant had been mixed with it; that Teton negligently, carelessly and improperly installed the water heater and stove on plaintiff's premises in such a manner that a large quantity of this gas escaped from its containers; that upon discovering that he had no hot water, the plaintiff called Teton, which sent a workman over to investigate; that the workman knew, or should have known, that gas had escaped, since the pilot light was out, and that it was likely present in dangerous amounts, but that, without taking any precautionary measures, he negligently and recklessly struck a match with the intention of lighting the pilot light, and thereby caused the explosion. Plaintiff further alleged that the explosion was due to the concurrent negligence of The California Company in failing to add a malodorant, of Stanolind in accepting and receiving the gas in such condition and delivering it to Teton without testing for the presence of a malodorant or adding it, and of Teton for accepting it in this condition and not checking for the malodorant or adding it, and further, for improperly installing the stove and water heater and striking the match in an attempt to light the pilot light.

The first question for determination is whether plaintiff's complaint in the federal court, without reference to the state court proceedings, states a claim on which plaintiff might recover. On motion to dismiss, every material fact well pleaded in the complaint, construed in the light most favorable to the plaintiff, is admitted, and any ambiguities must be resolved in favor of the claim attempted to be stated. Porter v. Karavas, 10 Cir., 1946, 157 F.2d 984; Gulf Coast Western Oil Co., Inc., v. Trapp, 10...