Continental Oil Co. v. Simpson
| Decision Date | 15 August 1980 |
| Docket Number | No. 9099,9099 |
| Parties | CONTINENTAL OIL COMPANY, Appellant, v. Sadie Alleen SIMPSON et al., Appellees. |
| Court | Texas Court of Appeals |
Gibson, Ochsner & Adkins, Mac W. Hancock, III, Amarillo, for appellant.
Gassaway, Gurley, Sheets & Mitchell, Jody G. Sheets, Borger, Jones, Trout, Flygare, Moody & Brown, Lubbock, for appellees.
In this action to recover monetary damages for the wrongful death of Samuel Virgil Simpson, the jury's answers to the submitted special issues failed to convict defendant Continental Oil Company, but convicted Simpson, of negligence proximately causing the occurrence from which his death resulted. The trial court determined that the failure of Continental to comply with a provision of tariff rules promulgated by the Railroad Commission of Texas was negligence per se and found as a matter of law, contrary to the jury's failure to factually find, that such noncompliance was a proximate cause of the occurrence. Then the court, ignoring the jury's findings that an act of Simpson was negligence which proximately caused the occurrence, rendered judgment against Continental for $248,272.97, the damages fixed by the jury. Concluding that the failure to comply with the provision of the commission's tariff rules is not negligence per se, we reverse and render.
Since the late 1940s, Simpson had operated his own trucking business in the Texas and Oklahoma panhandle areas. He owned several tractors and trailers, operating one rig as a full-time driver hauling refined petroleum products for, and under a lease arrangement with, Groendyke Transport, Inc. Continental owned a bulk plant facility located at Mobeetie, Texas, and operated by its employee-agent Lester Leonard.
On 23 March 1974 and in response to an order by Leonard, Simpson arrived at Continental's Mobeetie facility with a "split load" of Conotane and regular gasoline. Leonard was absent and Simpson was met by Joe Darnell, a Continental plant worker. Simpson, who had not been to the plant before, tied his truck unloading hose to the middle one of three lines for unloading products into the facility. He was told by Darnell what valves in the facility system to open and close to unload the Conotane and to change to unload the regular gasoline. Following Darnell's instructions, Simpson began unloading the Conotane. Darnell observed that the unloading was normal, talked with Simpson for "a little bit" and then left.
After an unfixed interval of time, during which Simpson had finished unloading the Conotane and changed his truck valves to off-load the regular gasoline, an explosion occurred, followed by a fire. The explosion and fire resulted, according to a jury finding, when Simpson pumped gasoline into a closed system, i. e., the valve was closed. Simpson suffered burns over eighty percent of his body and death later ensued.
The wrongful death action was brought by Simpson's surviving widow, Sadie Alleen Simpson, and the sons of their marriage, Allen Simpson, Nealby D. Simpson, Rossie R. Simpson and Lloyd Gail Simpson. The Simpsons named Continental Oil Company and Lester Leonard as defendants, but nonsuited Leonard prior to the trial. Truck Insurance Exchange, Inc., intervened, claiming subrogation rights to amounts it had paid to or on behalf of the Simpsons under policies of workers' compensation and property damage insurance it had issued.
During the course of the trial, the Simpsons offered Supplement No. 13 to Railroad Commission of Texas Motor Freight Commodity Tariff No. 7-L. Continental objected. After the Simpsons qualified their offer to which Continental objected, the court admitted the entire document of four pages. However, the admission was conditioned, as we understand the court's ruling, that paragraphs (4), (5) and (6) were admitted without limitation but only paragraphs (5) and (6) were to be displayed to the jury, and the remainder of the document was limited to the purpose of demonstrating that it is a complete document.
As the document bears on the appeal, page 1 of Supplement No. 13 has this language:
Except as otherwise provided, the rates and charges in this Supplement are subject to the surcharge provision of Item 1 of this tariff.
TO RAILROAD COMMISSION OF TEXAS MOTOR FREIGHT COMMODITY TARIFF NO. 7-L
PETROLEUM AND PETROLEUM PRODUCTS AS DESCRIBED HEREIN, IN BULK, IN TANK TRUCKS, MOVING VIA COMMON CARRIERS, LIMITED COMMON CARRIER MOTOR CARRIERS, AND SPECIALIZED MOTOR CARRIERS, AND AS MINIMUM VIA CONTRACT MOTOR CARRIERS
Rates herein include Pick-Up and delivery service at point of origin and at designation of the commodities transported, subject to the following provisions:
(2) The rates herein do not include the cost of loading into and/or unloading from the transporting vehicle. When the service is performed by carrier's power, charge of $.0020 per gallon for loading and $.0020 per gallon for unloading will be made, which shall be in addition to the applicable rate; except as provided in Paragraph (6) below.
(4) Inlets and outlets of tank trucks shall be sealed by the shipper, except when loading is performed under the provisions of paragraph (6) below the seals shall be furnished by the shipper and the carrier shall apply them.
(5) Consignee or his agent shall designate the line to which the unloading hose is to be coupled, the coupling to be done by the carrier.
(6) In the loading or unloading of commodities, operation of the motor vehicle will be performed by the carrier. Equipment of storage facilities to be operated by the shipper or consignee or their agent, except by agreement loading may be performed by the carrier with automatic metering equipment furnished by shipper; and except by agreement carrier may operate consignee's unloading facilities.
The special issues submitted to the jury were designed to inquire about acts or omissions to act on the part of both Continental and Simpson, negligence and proximate cause, except for two instances. One instance is material to the appeal. The noticeable instance is special issue no. 6, having its genesis in paragraph (6) of Supplement No. 13 and reading, with the jury's answers, thusly:
SPECIAL ISSUE NO. 6
A. Do you find from a preponderance of the evidence that Continental Oil Company acting through its agents, servants, or employees failed to operate the equipment of the storage facility located at Mobeetie, Texas, at the time Samuel Virgil Simpson was unloading at the facility?
ANSWER "It failed" or "It did not fail"
ANSWER: It failed
In the event you have answered Special Issue No. 6 A "It failed" then answer B; otherwise, do not answer B.
B. Do you find from a preponderance of the evidence that Continental Oil Company acting through its agents, servants, or employees did not have an agreement which allowed Samuel Virgil Simpson to operate the equipment of the storage facility located at Mobeetie, Texas, on August 23, 1974?
ANSWER "It did not have an agreement" or "It did have an agreement"
ANSWER: It did not have an agreement
In the event you have answered Special Issue No. 6 B "It did not have an agreement" then answer C; otherwise do not answer C.
C. Do you find from a preponderance of the evidence that said failure, if you have so found, was a proximate cause of the fire and explosion in question?
ANSWER "We do" or "We do not"
Continental objected to the submission of special issue no. 6 for the reasons, among others, that it attempts to submit a theory of negligence per se based upon a tariff of the commission and, in essence, that it does not require a finding of negligence, a requirement for liability. All objections were overruled.
By its answers to the special issues inquiring of act, negligence and proximate cause, the jury failed to find either the commission of the act or the omission to act inquired about; or, finding the commission of the act or the omission to act, failed to find that it was negligence; or, finding both, failed to find that the negligence was a proximate cause of the occurrence, with one exception. Answering special issue no. 13, the jury found that Simpson "operated his pump into a system which was a closed system by virtue of a closed valve," such action was negligence and a proximate cause of the occurrence in question. Having found that only Simpson committed a negligent act proximately causing the occurrence, the jury, adhering to the court's instruction, did not answer the negligence apportionment issue. In short, the jury's verdict was that Simpson's death was caused solely by his own negligence.
Continental moved for a take-nothing judgment on the verdict. The Simpsons and Truck Insurance Exchange moved the court for judgment in the amount of damages fixed by accepting the answer to special issue no. 6A as setting forth negligence per se by Continental, by disregarding the answer to 6C and expressly finding the proximate cause inquired about there as a matter of law, and by disregarding the answers to special issue no. 13 because it is an immaterial issue.
The court, reciting that the Simpson's and Truck Insurance Exchange's motion is granted, specifically disregarded the jury's answer to special issue no. 6C and substituted the finding of proximate cause as a matter of law and, without mentioning the jury's answers to special issue no. 13, rendered judgment. The judgment decrees that the Simpsons and Truck Insurance Exchange recover from Continental the $248,272.97 damages fixed by the jury, apportioned in amounts stated in the judgment.
Continental's twenty-one-point appeal has evoked two counter-points and eight cross-points from the Simpsons and Truck ...
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