American Cas. Co. v. Propane Sales & Service, Inc., No. 6477

Docket NºNo. 6477
Citation513 P.2d 1226, 89 Nev. 398
Case DateSeptember 14, 1973
CourtSupreme Court of Nevada

Page 1226

513 P.2d 1226
89 Nev. 398
AMERICAN CASUALTY CO., Appellant,
v.
PROPANE SALES & SERVICE, INC., Respondent.
No. 6477.
Supreme Court of Nevada.
Sept. 14, 1973.

Beckley, DeLanoy & Jemison, Las Vegas, for appellant.

Rose, Norwood & Edwards, Las Vegas, for respondent.

[89 Nev. 399] OPINION

GUNDERSON, Justice:

American Casualty Co., as subrogee to the rights of its insured, Wells-Stewart Construction Co., brought this action against Propane Sales & Service, Inc., to recover money paid to Wells-Stewart for a fire loss. American Casualty contended Propane Sales negligently caused the fire while refilling a propane gas tank at Wells-Stewart's asphalt plant. After a

Page 1227

trial, the jury returned a general verdict for Propane Sales, and American Casualty has appealed the judgment entered on that verdict. One error, particularly, forces us to remand this case for a new trial, at which other rulings assigned as error will not necessarily recur. Hence, on this appeal, we consider only the trial court's error in rejecting the following specific instruction concerning appellant's burden of proof:

'In an action for injury resulting from an escape or explosion of gas, the burden of proof rests on plaintiff to prove the facts constituting his cause of action. Hence plaintiff must prove that the cause of the injury was escaping gas, that it escaped through the negligence of the company, that it accumulated in the place where the injury occurred, and that defendant's negligence proximately caused the damage. It is not necessary, however, for plaintiff to show how the gas became ignited.' (Emphasis added.)

The refused instruction correctly stated the law. Bubrick v. Northern Illinois Gas Co., 130 Ill.App.2d 99, 264 N.E.2d 560 (1970); Marshall v. Co-operative Oil Co. of Olmsted County, 284 Minn. 549, 169 N.W.2d 395 (1969); Great American Insurance Co. v. Modern Gas Co., 247 N.C. 471, 101 S.E.2d 389 (1958); Chattanooga Gas Co. v. Underwood, 38 Tenn.App. 142, 270 S.W.2d 652 (1954). The cause of ignition was immaterial if respondent's negligence was a proximate cause of the fire. Ehler v. Portland Gas & Coke Company, 223 Or. 28, 352 P.2d 1102 (1960); McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 135 N.E. 43 (1922); Moore v. Lanier, 52 Fla. 353, 42 So. 462 (1906); Coffeyville Mining & Gas Co. v. Carter, 65 Kan. 565, 70 P. 635 (1902). As the court [89 Nev. 400] said in Luengene v. Consumers' Light, Heat & Power Co., 86 Kan. 866, 122 P. 1032 (1912): 'To hold that a man . . . must, when injured by such an explosion, prove what intervening hand or agency caused the spark is unreasonable, and in many cases would be impossible.' Id. at 1034.

Of course, a party is 'entitled to have specific charges upon the law applicable to each of the hypotheses or combinations of facts which the jury, from the evidence, might legitimately find.' Dixon v. Ahern, 19 Nev. 422, 429, 14 P. 598, 601 (1887). This, we believe, is not only...

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15 practice notes
  • Ford Motor Co. v. Trejo, No. 67843.
    • United States
    • Nevada Supreme Court of Nevada
    • September 27, 2017
    ...on the relevant law as it is informed by the evidence presented at trial. See402 P.3d 662 Am. Cas. Co. v. Propane Sales & Serv., Inc. , 89 Nev. 398, 400–01, 513 P.2d 1226, 1228 (1973) (reversing and remanding where the instructions given to the jury were so general that it gave "the jury a ......
  • JA Jones Constr. v. Lehrer McGovern Bovis, No. 39235.
    • United States
    • Nevada Supreme Court of Nevada
    • May 19, 2004
    ...issues sua sponte to prevent plain error). 8. Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919, 922-23 (1991). 9. 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Village Development Co. v. Filice, 90 Nev. 305, 314, 526 P.2d 83, 88 (1974) (noting that "`[i]f one in......
  • Village Development Co. v. Filice, Nos. 6759
    • United States
    • Nevada Supreme Court of Nevada
    • August 27, 1974
    ...language of Section 353(2) was not essential to performance of the jury's duty. Cf. American Cas. v. Propane Sales & Serv., 89 Nev. 389, 513 P.2d 1226 As appellant, of course, Village Development Co. has the burden of demonstrating prejudicial error. Meinhold v. Clark County School Dist., 8......
  • J.A. Jones Construction Company v. Lehrer McGovern Bovis, Inc., 120 Nev. Adv. Op. No. 32 (NV 5/19/2004), No. 39235.
    • United States
    • Nevada Supreme Court of Nevada
    • May 19, 2004
    ...issues sua sponte to prevent plain error). 8. Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919, 922-23 (1991). 9. 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Village Development Co. v. Filice, 90 Nev. 305, 314, 526 P.2d 83, 88 (1974) (noting that "`[i]f one in......
  • Request a trial to view additional results
15 cases
  • Ford Motor Co. v. Trejo, No. 67843.
    • United States
    • Nevada Supreme Court of Nevada
    • September 27, 2017
    ...on the relevant law as it is informed by the evidence presented at trial. See402 P.3d 662 Am. Cas. Co. v. Propane Sales & Serv., Inc. , 89 Nev. 398, 400–01, 513 P.2d 1226, 1228 (1973) (reversing and remanding where the instructions given to the jury were so general that it gave "the jury a ......
  • JA Jones Constr. v. Lehrer McGovern Bovis, No. 39235.
    • United States
    • Nevada Supreme Court of Nevada
    • May 19, 2004
    ...issues sua sponte to prevent plain error). 8. Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919, 922-23 (1991). 9. 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Village Development Co. v. Filice, 90 Nev. 305, 314, 526 P.2d 83, 88 (1974) (noting that "`[i]f one in......
  • Village Development Co. v. Filice, Nos. 6759
    • United States
    • Nevada Supreme Court of Nevada
    • August 27, 1974
    ...language of Section 353(2) was not essential to performance of the jury's duty. Cf. American Cas. v. Propane Sales & Serv., 89 Nev. 389, 513 P.2d 1226 As appellant, of course, Village Development Co. has the burden of demonstrating prejudicial error. Meinhold v. Clark County School Dist., 8......
  • J.A. Jones Construction Company v. Lehrer McGovern Bovis, Inc., 120 Nev. Adv. Op. No. 32 (NV 5/19/2004), No. 39235.
    • United States
    • Nevada Supreme Court of Nevada
    • May 19, 2004
    ...issues sua sponte to prevent plain error). 8. Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919, 922-23 (1991). 9. 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Village Development Co. v. Filice, 90 Nev. 305, 314, 526 P.2d 83, 88 (1974) (noting that "`[i]f one in......
  • Request a trial to view additional results

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