Desdemona Gasoline Co. of Texas v. Garrett

• Citation: 90 S.W.2d 636
• Decision Date: 03 January 1936
• Docket Number: No. 1462.,1462.
• Parties: DESDEMONA GASOLINE CO. OF TEXAS v. GARRETT.
• Court: Court of Appeals of Texas

90 S.W.2d 636

DESDEMONA GASOLINE CO. OF TEXAS v. GARRETT.

No. 1462.

Court of Civil Appeals of Texas. Eastland.

January 3, 1936.

Rehearing Denied January 31, 1936.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Action by Edgar Garrett against the Desdemona Gasoline Company of Texas and another. Judgment for plaintiff, and named defendant appeals.

Affirmed.

Goree & Rice, of Fort Worth, and Frank Judkins, of Eastland, for appellant.

Grisham Bros., of Eastland, for appellee.

GRISSOM, Justice.

The appellee, Edgar Garrett, sued J. F. Stillwell and the Desdemona Gasoline Company of Texas, a corporation, for damages alleged to have resulted from the explosion of a gasoline tank while Garrett was attempting to weld it. The suit resulted in a judgment for appellee against both defendants for the sum of $2,250. Desdemona Gasoline Company of Texas, hereinafter referred to as the company, appealed. Stillwell did not appeal.

Appellee alleged that Stillwell and Moss, superintendent of the company's plant at Desdemona, came to his home at night and requested him to go to his shop in the town of Desdemona for the purpose of welding a 925-gallon gasoline tank belonging to Stillwell; that Moss represented to Garrett that the tank was being duly and properly steamed at the company's refinery, which meant that by the use and application of steam all gasoline and gas was being eliminated and removed from said tank; that Stillwell and Moss requested Garrett to weld the tank, and that, relying upon the statements that the tank would be and had been properly steamed, he attempted to weld it; that it had not been properly steamed and there was present in the tank gasoline and gas; that when he attempted to weld it the explosion resulted, seriously and permanently injuring him; that the company was engaged at Desdemona in the manufacture and sale of gasoline; that Stillwell was its regular customer using the tank in the transportation of gasoline from the company's plant; that both of the defendants were interested and concerned in having the repair work done in order that Stillwell might continue to use the tank in the transportation of gasoline from the company's plant; that both of the defendants were interested and concerned in having the repair work done in order that Stillwell might continue to use the tank in the transportation of gasoline from the company's plant; that the defendants jointly undertook the work of steaming the tank; that the company furnished its facilities at its plant for use in such steaming process, and that Moss was acting for the company in furnishing to its customer, Stillwell, a usual and customary service rendered by the company; that the company, through Moss, undertook to assist in and supervise the steaming process, and the steaming was done and performed by Stillwell and Moss jointly. That both Stillwell and Moss were well aware of the great danger incident to such welding in the event gasoline or gas was permitted to remain in the tank, and that it was necessary before same was delivered to the welder that the tank should be thoroughly and efficiently steamed and all gasoline or gas eliminated therefrom. That it was customary and necessary in preparing a tank of the size owned by Stillwell to keep the tank under proper steam pressure for a period of at least 2 or 2½ hours, and that the exercise of ordinary care in such work required that such tank be so steamed for such period of time. Appellee alleged that appellant and Stillwell, regardless of their duty, failed to steam the tank in an efficient and workmanlike manner, and failed to steam the same under sufficient pressure and for a sufficient length of time to remove and eliminate therefrom all gasoline and gas and discontinued the steaming process while there yet remained in the tank a quantity of gasoline and gas, and in such condition delivered the tank to appellee with the request that he weld it. That Stillwell and the company were guilty of negligence in failing to steam the tank with sufficient thoroughness to remove the gasoline and gas, and that such negligence was a proximate cause of plaintiff's injuries. Appellee further alleged a general custom and practice among concerns such as the defendant company to steam the tanks of its customers, free of charge; that such custom prevailed in the immediate locality of the defendant company's plant, in the county and throughout the country. That Moss, who was the general superintendent of the company at Desdemona, at the time he came to appellee's home and requested him to go to his shop and weld the tank for the company's customer, Stillwell, stated to appellee that the tank was being properly steamed, which statement he alleged amounted to a representation that the tank would be properly steamed, and when delivered to Garrett would be in a proper condition to be welded; that Moss knew that Garrett would accept and rely upon his said representations and promise, and that he did so. Appellee further alleged in detail the acts and representations of the appellant company through its agents and employees, its negligence, an alternative plea, etc.

The defendants answered only by a general denial.

The special issues submitted to the jury, and its answers thereto, are as follows:

"Special Issue No. 1-A: Do you find from a preponderance of the evidence that the defendant, J. F. Stillwell, acting either alone or in concert with any other person or persons, undertook to steam the tank on the occasion in question in order that said tank might be welded? Answer: Yes.

"Special Issue No. 1-B: Do you find from a preponderance of the evidence that the said J. F. Stillwell, acting either alone or in concert with some other person or persons, failed to steam the tank with sufficient thoroughness and for a sufficient length of time to remove therefrom all gasoline and gas? Answer: Yes.

"Special Issue No. 1-C: Do you find from a preponderance of the evidence that such failure, if any, to steam said tank with sufficient thoroughness to remove therefrom all gasoline and gas, constituted negligence on the part of the said defendant, J. F. Stillwell? Answer: Yes.

"Special Issue No. 1-D: Do you find from a preponderance of the evidence that such negligence, if any, on the part of said defendant, J. F. Stillwell, was a proximate cause of the injuries, if any, sustained by the plaintiff, Edgar Garrett? Answer: Yes.

"Special Issue No. 2-A: Do you find from a preponderance of the evidence that when the tank in question was being steamed Denny Moss promised the plaintiff that the said tank would be properly steamed for welding? Answer: Yes.

"Special Issue No. 2-B: Do you find from a preponderance of the evidence that after having made said promise, if he did make same, the said Denny Moss failed to see that the said tank was properly steamed for welding? Answer: Yes.

"Special Issue No. 2-C: Do you find from a preponderance of the evidence that such failure on the part of the said Denny Moss, if any, constituted negligence? Answer: Yes.

"Special Issue No. 2-D: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injury sustained by the plaintiff, if any? Answer: Yes.

"Special Issue No. 2-E: Do you find from a preponderance of the evidence that the said Denny Moss, in promising the plaintiff that the tank would be properly steamed for welding, if he did make such promise, was acting within the course of his employment with the defendant, Desdemona Gasoline Company of Texas, as the term `Course of His Employment' is defined hereinabove? Answer: Yes.

"Special Issue No. 3-A: Do you find from a preponderance of the evidence that any servant or employee of the defendant, Desdemona Gasoline Company of Texas, undertook to assist in the process of steaming the tank on the occasion in question? Answer: Yes.

"Special Issue No. 3-B: Do you find from a preponderance of the evidence that after such servant or employee of the said defendant company undertook to assist in such steaming process, if he did so undertake, such servant or employee failed to see that the tank was steamed with sufficient thoroughness to remove therefrom all gasoline and gas? Answer: Yes.

"Special Issue No. 3-C: Do you find from a preponderance of the evidence that such failure, if any, on the part of the said servant or employee of the defendant, Desdemona Gasoline Company of Texas, constituted negligence? Answer: Yes.

"Special Issue No. 3-D: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injuries suffered by the plaintiff, if any? Answer: Yes.

"Special Issue No. 3-E: Do you find from a preponderance of the evidence that such servant or employee, if any, of the said defendant Company, in so undertaking to assist in the steaming process of said tank, if he did so, was acting within the course of his employment as such servant or employee of said Desdemona Gasoline Company of Texas? Answer: Yes.

"Special Issue No. 4: From a preponderance of the evidence, what amount of money, if any, if paid now in cash, would reasonably and fairly compensate the plaintiff, Edgar Garrett, for the said injuries, if any, sustained by him on the occasion in question? Answer: $2250.00.

"Special Issue No. 2-A requested by the Plaintiff: Do you find from a preponderance of the evidence that the defendant Desdemona Gasoline Company, when it permitted the tank to be steamed at its plant on the occasion in question, failed to cause such steaming process to be supervised by one of said defendant Company's officers or employees who was experienced in such work? Answer: Yes.

"Special Issue No. 2-B requested by the Plaintiff: Do you find from a preponderance of the evidence that such failure on the part of the defendant Desdemona Gasoline Company of Texas to cause such supervision by one of its experienced employees or...