Babler Bros., Inc. v. Pacific Intermountain Exp. Co.

• Citation: 244 Or. 459,415 P.2d 735
• Parties: BABLER BROS., INC., Respondent, v. PACIFIC INTERMOUNTAIN EXPRESS CO., a corporation, Appellant.
• Decision Date: 15 June 1966
• Court: Oregon Supreme Court

Page 735

415 P.2d 735

244 Or. 459

BABLER BROS., INC., Respondent, v. PACIFIC INTERMOUNTAIN EXPRESS CO., a corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted May 6, 1966.

Decided June 15, 1966.

Kaye C. Robinette and John Gordon Gearin, Portland, argued the cause for appellant. With them on the briefs were McColloch, Devendorf & Spears, Portland.

Loren H. Russell, Salem, argued the cause for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, and Wayne A. Williamson, Portland.

Before McALLISTER, C.J., and SLOAN, GOODWIN, HOLMAN and HAMMOND, JJ.

GOODWIN, Justice.

This is an action for damages sustained when gasoline exploded while being discharged from defendant's truck into plaintiff's storage tank. The trial court, sitting without a jury, found for plaintiff. Defendant appeals.

Babler is a highway-construction company; defendant is a common carrier. Shell Oil Company, not a party in this litigation, sold gasoline to Babler. Babler's storage tank was furnished by Shell. Shell also furnished a calibrated measuring stick and a chart, which, when properly employed, were supposed to provide a reasonably accurate measurement of the contents of the tank at any given time. The tank was assumed by all concerned to be 'a 10,000 gallon tank.'

On the day of the explosion and fire, Babler had ordered 'a tankful' of gasoline from Shell. Shell had engaged defendant to deliver the order. Defendant's truck, loaded with 8,250 gallons of gasoline, arrived at Babler's storage site. The driver, a Mr. Gurnsey, asked Babler's foreman, a Mr. Negus, to 'stick' the tank. Mr. Negus measured the contents of the tank, and estimated them to be 1,000 gallons. Mr. Gurnsey apparently assumed that he could safely pump his whole load into Babler's tank, with room to spare. The gasoline was pumped out of the truck by means of a gasoline-driven pump mounted on the storage tank. (By using its own pump, Babler saved a half cent on each gallon of gasoline.)

After one of Babler's employes had helped start the pump engine, about an hour elapsed while some 6,575 gallons were discharged from defendant's truck into the storage tank. Mr. Gurnsey then decided to check on the rate at which the storage tank was filling, and climbed a ladder to peer into the top of the tank. By the time he reached the top of the storage tank, gasoline had started to overflow. The driver yelled for a Babler employe to turn off the pump, and scrambled down himself to shut off the valve at the truck. The overflow cascaded down over the gasoline engine that powered the pump. Before either man was able to stop the flow of gasoline, contact between the pump engine and the overflow gasoline produced an explosion. The Babler employe was injured, and other loss and damage resulted. The amount of damage is not an issue in this case. The question is whether the defendant is liable.

In its answer, the defendant denied that its driver had acted negligently. The defendant contended that the fire was caused solely by the negligence of Babler's employes. Defendant accordingly counterclaimed for reimbursement of a settlement it had made with the injured Babler employe.

The trial court found that defendant's driver had negligently failed to keep a reasonable watch over the rate at which the storage tank was filling. The evidence of the driver's failure to exercise due care presented a question for the trier of fact. An assignment of error asserting that the defendant was free from negligence as a matter of law is therefore without merit. The trial court's findings also disposed of the counterclaim.

The principal remaining questions concern Babler's contributory negligence. If the trial court treated negligence and causation as questions of fact, there is then a subordinate issue concerning the correctness of the findings made by the trier.

The conceptual difficulties concerning tort causation recur in any case when it seriously can be argued that conduct which in fact may have played a substantial part in causing the harm is, nonetheless, not a 'proximate,' or legally consequential, cause of the harm. As Dean Prosser puts it:

'The term 'proximate case' is applied by the court to those more or less undefined considerations which limit liability even where the fact of causation is clearly established * * *.' Prosser, Torts 282 (3d ed. 1964).

Ordinarily, an actor's conduct, be it negligent or otherwise, occurs in combination with the conduct of others or with conditions which exist independently of the conduct in question. In the run of negligence cases, most of which never reach appellate courts, the factual inquiry whether the actor's conduct was a substantial factor in producing the harm is relatively uncomplicated. The litigants concentrate instead on the issue of negligence. Accordingly, it makes little real difference, in most cases, whether the ultimate issue of liability is submitted to the jury in terms of 'proximate cause,' 'legal cause,' or 'responsible cause.' More or less by default, courts have settled upon 'proximate cause' as an opaque way of telling the jury that conduct can cause harm, and can be negligent conduct, and yet might not, in every case, justify the imposition of legal consequences upon the actor. See, e.g., Sworden v. Gross, 82 Or.Adv.Sh. 51, Or., 409 P.2d 897 (1966); Mezyk v. National Repossessions, 241 Or. 333, 405 P.2d 840 (1965). Courts do not, however, shed much light on the tests the jury should use in the difficult cases. Probably in no other subdivision of tort law have courts been so adept at 'hiding the ball.' See discussion of the problem in Probert, Causation in the Negligence Jargon, 18 U.Fla.L.Rev. 369 (1965); and Dewey v. A. F. Klaveness & Co., 233 Or. 515, 379 P.2d 560 (1963).

The facts of the case at bar illustrate the problem. The supplying of misleading information was at least one of the causes of the fire which caused the harm in this case. There was, theoretically, a question of fact whether the person supplying the misinformation used reasonable care, and there was either a question of law or a question of fact whether that conduct, if negligent, was the kind of conduct for which the law ought to impose liability.

The trial judge decided, in effect, to dispose of the problem of 'proximate cause' as a matter of law. He believed himself required to follow that course by our decision in Oregon Mutual Fire Ins. Co. v. Mayer, 211 Or. 556, 316 P.2d 805 (1957). In that case, a service station operator had advised a gasoline distributor that he 'could take 325 gallons.' The distributor thereupon metered 325 gallons into his truck, and proceeded to the service station. While his truckload was flowing into the station storage tank, the distributor sipped coffee in a nearby restaurant. The storage tank overflowed, causing gasoline to run into the restaurant. The gasoline ignited when it came into contact with an oil heater. When the service-station operator brought action for the resulting harm, the defendant alleged that the plaintiff was contributorily negligent in furnishing misleading information. This court held that the plaintiff was under no duty to guard against the risk that the defendant would fail to exercise proper care in...