Capital Transport Co. v. Segrest

• Citation: 181 So.2d 111,254 Miss. 168
• Decision Date: 17 December 1965
• Docket Number: No. 43665,43665
• Parties: CAPITAL TRANSPORT COMPANY, Inc. v. Oren R. SEGREST.
• Court: United States State Supreme Court of Mississippi

Page 111

181 So.2d 111

254 Miss. 168

CAPITAL TRANSPORT COMPANY, Inc. v. Oren R. SEGREST.

No. 43665.

Supreme Court of Mississippi.

Dec. 17, 1965.

Satterfield, Shell, Williams & Buford, Jackson and Yazoo City, Karl Weil, Port Gibson, for appellant.

Daniel, Coker & Horton, Ruby B. Weeks, Jackson, J. T. Drake, Jr., Port Gibson, for appellee. INZER, Justice:

This is an appeal by Capital Transport Company, Inc. from a judgment of the Circuit Court of Claiborne County, wherein appellee, Oren R. Segrest, obtained judgment for personal injuries and property damages alleged to have resulted from an explosion and fire caused by the negligence of appellant. The cause was tried by a jury, which returned a verdict in favor of appellee in the amount of $90,000. Upon a motion for a new trial, the trial court upheld the finding of the jury as to liability, but ordered a new trial as to damages unless appellee would consent to a remittitur of $20,000. A judgment was entered to this effect, and from this judgment Capital Transport Company, Inc. has appealed. Appellee refused to enter the remittitur, and has cross appealed.

Appellant, Capital Transport Company, Inc., hereinafter referred to as Transport, in its assignment of errors assigns eighteen errors on the part of the trial court, but in its brief these are consolidated into five points. They are: (1) Appellant was entitled to a peremptory instruction; (2) The court erred in submitting the case to the jury under the doctrine of res ipsa loquitur; (3) The court erred in admitting the testimony of Dr. Eldred W. Hough as an expert witness; (4) The court erred in admitting appellee's testimony with respect to loss of income attributable to his injuries; and (5) The verdict of the jury is so excessive as to evidence bias, prejudice and passion on the part of the jury.

Appellee and cross appellant, Oren R. Segrest, hereinafter referred to as Segrest, in his cross appeal contends the trial court was in error in entering an order that the verdict was excessive in the amount of $20,000 and in ordering a new trial for assessment of damages unless Segrest agreed to the remittitur.

The facts in this case show that Segrest was on June 18, 1963, and had been long prior thereto, the owner and operator of a business known as Segrest Oil Company. This business was located on the east side of Church Street in the town of Port Gibson. In his business Segrest operated a bulk storage plant where he sold gasoline, motor oil, grease, and other products of Gulf Oil Corporation. He also handled butane gas, tires, gas heaters, stoves, and other related items. Segrest owned all of the equipment located on his lot. There was an office building, also used as a display room, that faced Church Street. Immediately east of the office building were located three gasoline storage tanks. Each of these tanks had a capacity of 14,000 gallons. They were in a line directly east of the office building, and were placed on three concrete cradles, one cradle being at the front, one in the center, and one at the rear of the tanks. These tanks are referred to in the testimony as tanks No. 1, No. 2, and No. 3, tank No. 1 being the tank immediately east of the office building, and the one used for storage of premium gasoline. Tank No. 2 was next in line, and it was used for storage of regular gasoline. The next, No. 3, was divided into two compartments, each with a 7,000 gallon capacity. The rear compartment was used for the economy brand gasoline known as Gulftane. The other compartment was used for storage of diesel fuel. To the north, or rear, of these tanks was a tank used for storage of kerosene. Immediately east of the tanks was a two-story warehouse used by Segrest for storage of appliances, tools, and other items used in his business. Immediately east of this building was a one-story warehouse which was used for storage of motor oil, grease and other petroleum products.

Capital Transport Company, Inc. was on June 18, 1962, and had been for many years prior thereto, engaged as an intrastate and interstate motor carrier, transporting for hire gasoline, oil and other related products. Among its customers was Gulf Oil Corporation, and it had for many years delivered Gulf's products to Segrest.

On the morning of June 18, 1962, Transport sent one of its transport trucks to deliver a tank of gasoline to Segrest. The transport used to haul the gasoline was pulled by a 1958 International tractor, and the tank was on a 1961 Trailmobile. The tank was loaded with 7,200 gallons of gasoline, most of which was premium gasoline, and the balance of which was Gulftane gasoline. The transport truck was driven by Mr. Jeter, this being the second day he had driven this particular rig, although he had worked for Transport for several years. He arrived at the bulk plant of Segrest about 8:00 a. m. He drove into the plant from Church Street and parked at the unloading point, with the cab of his truck facing Church Street. After he arrived his load of gasoline was checked by Mr. Sumrall, an employee of Segrest, to ascertain that the tank on the transport contained the correct gallonage ordered by Segrest. After this was done, preparation was made to unload the gasoline.

Segrest had constructed his tanks in such a manner that they were filled by means of an underground pipe which extended from the unloading point, located forty-two feet fouth of tank No. 1. This was a two-inch pipeline which ran underground from the unloading point to the north and extended to the rear of tank No. 1. It then turned at a right angle and ran for a distance of about seventeen feet, at which point a standpipe extended from the pipeline above the ground. This standpipe was equipped with a quick coupling connection to which a flexible rubber hose could be attached and connected to any of the tanks to be filled with gasoline. Each of the tanks had an intake pipe located very near the bottom of the tank. On each intake pipe was a gate valve which was manually operated. The intake pipes were not equipped with check valves to prohibit the contents of the tank from flowing back through the intake pipe when the main valve was open. This arrangement made it necessary that the gasoline delivered by Transport be pumped from the tank on the transport truck into the storage tank.

At the unloading point there was a stub coming up from the underground pipeline which did not extend above ground level. It was enclosed in a box-like arrangement similar to those used for water meters. To the stub was attached a quick coupling connection to which a hose could be attached that extended from the pump on the transport to the pipeline.

On the day in question, after Sumrall had checked the gallonage in the transport truck, he proceeded to the rear of the tanks. He connected the flexible hose to the valve on the standpipe, and to the intake pipe on tank No. 1. While he was making these connections Jeter connected a rubber hose which he carried on his transport truck to the outlet pipe on the tank of the transport truck to the pump located to the rear of the cab of his tractor. He then connected another hose to the outlet from the pump to the stub on the underground pipeline. He then started the pump on his truck to operating, and Sumrall opened the valve on tank No. 1. After Sumrall ascertained that the connections were properly made and that the gasoline was flowing into tank No. 1, he went about his other duties. From this point on the unloading operation insofar as pumping the gasoline out of the tank on the truck into the underground pipeline was concerned, it was under the exclusive control of Jeter. On each of the storage tanks there was a pressure relief valve to allow air and fumes to escape from the tanks while they were being filled. The proof shows that these fumes and vapors were heavier than air and as they came out of the tank they settled to the ground. The weather on this day was hot, humid and cloudy.

The pump on the truck was a shaftdriven pump which was operated by the power of the engine on the tractor. This operation made it necessary that the engine run during the entire unloading operation. The pump was located to the rear of the cab and over the muffler of the tractor.

To the front of the storage tanks Segrest had constructed a driveway which was used for placing his delivery trucks in order to load gasoline from the storage tanks into the tanks on his trucks. The storage tanks were high enough that the delivery trucks could be loaded by force of gravity. At the front of each of the tanks there was an outlet pipe upon which there was a gate valve. These outlet pipes connected into a pipe that connected to a standpipe arrangement. This arrangement was so constructed that there was an automatic valve which when the fill pipe was lowered, it opened, and when it was raised, it closed. On the day in question one of the Segrest delivery trucks was parked in front of the storage tanks when the operation began.

After Jeter had completed pumping out the premium gasoline he signaled to Dave Brown, a colored employee of Segrest, to that effect. Brown then closed the gate valve on tank No. 1 and Jeter disengaged the pump on his truck. Brown then disconnected the hose from tank No. 1 and connected it to the intake pipe on tank No. 3. While he was making this change Jeter, who had walked from his truck to the rear of the tanks, watched the change being made. Jeter then returned to his truck and opened the valve to the compartment containing Gulftane gasoline. He started the pump operating again and Brown then opened the gate valve on tank No. 3 so gasoline could enter the tank. After this operation was started, Brown proceeded to load the tank on the delivery truck with regular gasoline from tank No. 2. In order to do this it was necessary that he open the gate valve on tank No. 2, and open the dome hole on top of the tank on his truck and place...