Diamond Management Corp. v. Empire Gas Corp., 5036

• Citation: 594 P.2d 964
• Decision Date: 10 May 1979
• Docket Number: No. 5036,5036
• Parties: DIAMOND MANAGEMENT CORPORATION, a Wyoming corporation, Appellant (Third-Party Plaintiff below), v. EMPIRE GAS CORPORATION, a Missouri corporation, and Wayne Maxson, Individually and as agent, servant and employee of Empire Gas Corporation, Appellees (Third-Party Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 964

594 P.2d 964

DIAMOND MANAGEMENT CORPORATION, a Wyoming corporation, Appellant (Third-Party Plaintiff below), v. EMPIRE GAS CORPORATION, a Missouri corporation, and Wayne Maxson, Individually and as agent, servant and employee of Empire Gas Corporation, Appellees (Third-Party Defendants below).

No. 5036.

Supreme Court of Wyoming.

May 10, 1979.

Rehearing Denied June 7, 1979.

R. R. Bostwick and Patrick Dixon of Murane & Bostwick, Casper, for appellant.

Larry Lawton of Guy, Williams & White, Cheyenne, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

This is an appeal by third-party plaintiff (appellant) from a judgment in favor of third-party defendants (appellees) after a trial to the court on the issue of whether or not appellant should have contribution from appellees to satisfy a judgment of $1,646,438.49 paid by appellant in settlement of a claim for damages caused by explosion of a propane (liquified petroleum gas) bottle. The propriety of contribution turned on whether or not appellees were negligent in the premises. The trial court found that they were not. We will affirm.

The litigation originally involved numerous other parties. Although appellant originally based its action against appellees on additional theories, the trial was had only on the theory of contribution. For the purposes of this action, it was stipulated that appellant was liable to those injured, that it had settled the liability with them, and that the amount of the settlement was fair and reasonable.

Appellant operated a ranch near Dubois. It used a great deal of propane for heating of buildings, running irrigation pumps, burning weeds, and other ranching activities, including the heating of branding irons. Most, but not all, of the propane was purchased from appellee Empire Gas Corporation, also known as Empiregas, Inc. of Dubois ¹ (hereinafter appellee Empire Gas). Appellee Empire Gas delivered some of the propane to a larger storage tank on the ranch, from which the propane could be transferred to smaller portable containers. Appellee Wayne Maxson, an employee of appellee Empire Gas, made the deliveries of the propane to appellant for appellee Empire Gas. On May 3, 1974, one of the ranch hands connected a bottle to the storage tank and left it overnight to be filled. The next day, another employee disconnected the bottle and took it to a branding corral where it was left in the sun. The sun's heat expanded the propane, creating hydrostatic pressure in excess of the burst capacity of the bottle, causing it to rupture. The resulting explosion and fire injured thirteen persons, one of whom died. Most bottles contain a "spit" or "pop-off" valve to vent excess pressure. This particular bottle did not.

Additional facts to determine the issues here presented will be set forth hereinafter as necessary.

Appellant alleges error: (1) in Findings of Fact 5, 6, 10, and 14, and Conclusions of Law 4, 6, 7, 9, 11, 12, and 13 made by the trial court in that they improperly applied the degree of duty owed by appellees; (2) in

Conclusions of Law 11, 12, and 13 in that fault was not properly proportioned; and (3) in refusing to admit a statement of a witness for purposes of impeachment on the grounds of attorney-client relationship.

DEGREE OF DUTY OWED BY APPELLEES

The findings of fact and conclusions of law which appellant alleges to be in error in this respect are:

"FINDINGS OF FACT

"5. The Third-Party Defendant, Maxson, did not know, nor was it reasonably apparent, who filled propane bottles at the 590 gallon tank or who was in charge of said tank.

"6. Discussions concerning safety in connection with the refilling operation of propane bottles and in connection with valves located on propane bottles had been discussed by the Third-Party Defendant, Maxson, with foremen and employees of Diamond Management Corporation.

"10. The Third-Party Defendant, Wayne Maxson, prior to the accident, recognized the hazardous condition of said bottle in that it lacked a safety relief device and Maxson had delivered a clear and adequate warning to employees of the Third-Party Plaintiff, particularly Clayton Cargill, of the hazardous conditon (sic) of said bottle and noted the lack of a pressure relief device.

"14. That said injuries and damages would not have occurred if the foremen and employees of Diamond Management Corporation had heeded the instructions and warning of the Third-Party Defendant, Maxson, and had received proper training, instruction and supervision from the Third-Party Plaintiff relative to the handling of LP gas.

"CONCLUSIONS OF LAW

"4. That the warnings which Maxson had given the foreman (sic) and employees of Diamond Management Corporation fulfilled the duty of the Third-Party Defendants to warn of dangerous practices; and that said warnings were delivered to the foremen and employees of Diamond Management Corporation.

"6. That Diamond Management Corporation breached its duty in that it negligently failed to train, instruct and supervise its employees in the safe handling of LP gas, which duty is nondelegable.

"7. That the system for refilling small propane bottles from the larger propane tank was installed and operated by employees of Diamond Management Corporation, and neither Maxson nor Empire Gas are (sic) liable for any defects or deficiencies in said refilling system.

"9. Neither Wayne Maxson nor Empire Gas had a duty to prevent unsafe practices in the filling of said bottles By means of seizure of property of Diamond Management Corporation or bottles or tanks leased to Diamond Management Corporation.

"11. That neither Wayne Maxson nor Empire Gas Corporation is liable to Diamond Management Corporation as a joint tortfeasor.

"12. That neither Empire Gas nor Wayne Maxson is liable to Diamond Management Corporation on the Third-Party Complaint of Diamond Management Corporation.

"13. That neither Wayne Maxson nor Empire Gas Corporation were (sic) negligent."

On appeal, findings of fact are presumptively correct and shall not be set aside unless clearly erroneous or contrary to the great weight of the evidence. The standard for our review in this case was well stated "The trial court's revised findings of fact 'come here well armed with the buckler and shield' of presumed correctness. The findings and judgment of a trial court are generally affirmed if there is any evidence to support them (Bentzen v. H. N. Ranch, Inc., 78 Wyo. 158, 320 P.2d 440) and should be disturbed only when it appears they are clearly erroneous or contrary to the great weight of evidence. Willis v. Asbury Transportation Co., Wyo., 386 P.2d 934. An appellate court should not substitute its conclusions for those made by the lower court (Twing v. Schott, 80 Wyo. 100, 338 P.2d 839), particularly when a case is tried to a court without a jury and different conclusions can be rationally drawn from the evidence. Arch Sellery, Inc. v. Simpson, Wyo., 360 P.2d 911. Although the record does not reveal an overwhelming amount of support, sufficient evidence is presented to substantiate the trial court's revised findings of fact. They are neither clearly erroneous nor contrary to the great weight of the evidence and should be affirmed."

by Justice Rose in Whitefoot v. Hanover Ins. Co., Wyo., 561 P.2d 717, 720 (1977):

Appellant contends that the application of this standard will not support the findings to the effect that appellee Empire Gas' employee, appellee Maxson, exercised proper care, having regard to all of the circumstances involved, in warning employees of appellant relative to the hazardous condition of the bottle which exploded and in the handling of propane generally.

As stated in Pan American Petroleum Corporation v. Like, 381 P.2d 70, 74 (1963):

"It is generally the rule that a person knowingly dealing with a dangerous agency must exercise care commensurate with the danger of injury involved. In other words, he must exercise ordinary care, having regard to all of the circumstances involved. (Citations.)

"A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk. This care is sometimes described as a high degree of care, or a very high degree of care, or in some instances as the utmost care or extreme care. (Citations.)

"While no absolute standard of duty in dealing with dangerous agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. (Citations.)"

The trial court determined that this standard of duty was met by appellees, and a review of the evidence reflects that the determination was not clearly erroneous or contrary to the great weight of the evidence.

Appellee Maxson testified that he discussed the methods and procedures of filling bottles from storage tanks and the necessity for leaving expansion space on top with appellant's employees "on more than one occasion." He specified discussions with appellant's employees, Clayton Cargill, John Raymond and Don Albright, the farm manager. He said George Meeks, the ranch manager, and "one or two other individuals were nearby" during some of the discussions. He testified that he told Cargill, who was a foreman of the equipment or maintenance men, that the bottles had to be weighed "on a set of scales to know what's in them;" and that he suggested that they use scales. He also testified that he noticed the bottle without a "pop-off" valve a few months before the incident as he drove by the ranch shop where it was standing with another bottle. At that time, he examined the bottle and told Cargill, who was the only one around, that a safety valve should be installed on the bottle and that if he "had to work with equipment like that, it would scare the hell out of me." He asked Cargill "if he would see to it" and that Cargill "acknowledged...