Gilbert v. Gulf Oil Corporation

• Decision Date: 02 June 1949
• Docket Number: No. 5855.,5855.
• Citation: 175 F.2d 705
• Parties: GILBERT v. GULF OIL CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

175 F.2d 705 (1949)

GILBERT v. GULF OIL CORPORATION.

No. 5855.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1949.

Decided June 2, 1949.

Max J. Gwertzman, New York City (William S. Mundy, Jr., and E. Marshall Frost, Lynchburg, Va., on the brief), for appellant.

Samuel H. Williams, Lynchburg, Va., and R. F. Carter, Houston, Tex. (J. E. McAshan, A. R. Martin and Archie D. Gray, Houston, Tex., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought to recover damages which were suffered when a five story public storage warehouse and its contents were destroyed by fire on March 8, 1944, at Lynchburg, Virginia. Cornelius Gilbert, the owner of the warehouse, claimed damages for himself and for his customers in the sum of $365,529.77 against the Gulf Oil Corporation on the ground that the fire followed an explosion which was caused by negligence in the delivery of gasoline on the premises by Jennings-Watts Oil Co., Inc., a local distributor of the defendant's products. The question of the defendant's liability, but not the amount of the damages, was submitted to the jury which found for the defendant. The plaintiff contends on this appeal that the District Judge erred in refusing to direct a verdict in his favor, in admitting as evidence the opinions of certain members of the city fire department as to the cause of the fire, and in ruling upon the propriety of certain arguments offered by the attorneys to the jury.

The explosion occurred while a delivery truck was supplying gasoline to a storage tank installed beneath the floor of the basement of the building. The truck had backed part way into one of two driveways located inside the building on the first floor and separated by a loading platform 3 or 4 feet high. The flooring of the driveways and the sides of the platform were made of 3 inch straight edge boards with narrow cracks between them. A fill pipe 11 feet long with an inside diameter of 2 inches extended vertically from the storage tank in the basement to a point near the top of the basement beneath the loading platform. This pipe was accessible through a small removable hatch or trap door in the side of the platform. During the delivery of gasoline one end of a hose was coupled to a spigot on the back of the truck and a nozzle 1 7/8 inches in exterior diameter was inserted into the end of the fill pipe. Means for the escape of gasoline vapor under pressure from the tank was provided by a vent pipe which ran from the tank through the front wall of the building to a point 13½ feet above the street level. This pipe was 3 inches in diameter at the tank and 1 inch in diameter at the other end. There was also a suction pipe through which gasoline was withdrawn from the tank by a pump on the platform and a return line for the return of excess gasoline to the tank. A coal furnace for heating the offices was located in the basement 45 feet from the front wall of the building.

On the day of the fire the delivery truck was in charge of a driver skilled in driving trucks but with somewhat less than four months' training and experience in handling deliveries from a gasoline truck. He was instructed to deliver 250 gallons on this occasion. According to his testimony, he connected the truck to the fill pipe by hose in the usual manner, turned on the spigot in the rear of the truck, and then while the gasoline was running, left the truck unattended and went to the office of the storage warehouse to collect payment for the gasoline. He had not been instructed that he should not leave the truck while gasoline was flowing from the spigot. While he was still in the office, and before his business was completed, the explosion occurred and flames shot up the elevator shaft so rapidly that the building and contents were completely destroyed despite the efforts of the city firemen who promptly responded to the automatic alarm.

Witnesses testified that when the explosion occurred, they saw a ball of fire about the size of a flour barrel at the rear of the truck, and then a flame which burned about the truck. This was soon quenched and a fireman was able to drive the truck from the building under its own power; but in the meantime the fire had spread to the upper floors. The back part of the truck was burned and its brake hose was severed by the flames. The testimony was conflicting as to whether a part of the delivery hose was attached to the truck when it was driven out of the building. When the rubble in the basement was excavated some weeks after the fire, there were found a rubber hose with spiral wire reinforcements connected to a nozzle consisting of an elbow and a 1½ inch pipe, and also a second nozzle to which was attached a small piece of charred canvas hose. The truck customarily carried two hoses, one of rubber and one of canvas; and the testimony is conflicting as to whether the rubber or canvas hose was used on this occasion. The fill pipe and the furnace were found to be in good condition but no nozzle was found in the fill pipe.

It is agreed that the explosion probably occurred by the ignition at the furnace of gasoline fumes which, being three times heavier than air, settled into the basement. The conflict comes as to the reason for the presence of the fumes near the furnace, and on this point differing opinions were expressed by qualified scientific experts. The plaintiff's theory was that the delivery hose was carelessly coupled to the truck and came loose in the absence of the driver so that gasoline was spilled on the floor of the driveway and seeped through the cracks into the basement. In support of this theory the plaintiff points to testimony tending to show that the hose if properly connected to the truck would stand a tension of 1,000 pounds before parting, and yet the truck was driven out of the driveway after the explosion without difficulty; that no hose was attached to the truck when it was driven out, and that a reinforced rubber hose with both nozzle and coupling attached was found in the rubble in the warehouse basement. The "ball of fire" is said to be the result of the tendency of gasoline vapors when exploded to flash back to the point of origin of the fumes, and consequently the fire in the rear of the truck indicates that the source of the vapor was near the point where the delivery hose was normally coupled to the truck and the presence of fire in this proximity is indicated by the severance of the brake hose underneath the body of the truck.

Finally, the plaintiff contends that the defendant's explanation that the fumes reached the basement from the end of the fill pipe, when they were forced out of the tank by the entering gas, is untenable, since the fumes would have found escape more easily through the vent pipe than through the fill pipe in view of the small space remaining when a nozzle 1 7/8 inches in diameter was inserted in the fill pipe 2 inches in diameter. In this connection it is pointed out that the fill pipe was located outside the building until 1936 or 1937 when it was moved because it was damaged by vandals and that on this occasion the Standard Oil Company, which was supplying gasoline to the premises at the time, relocated the pipe 5 feet inside the building line; and that the defendant began to supply gasoline to the premises in 1938 and for the purpose placed a new pump on the premises for use in connection with the existing installation and the inside fill pipe without warning the plaintiff that the installation was in any way dangerous, and since that time has used the installation many times for the delivery of gasoline without accident of any kind.

The defendant on the other hand stresses the fill pipe theory. It contends that since gasoline is heavier than air the fumes would not seek exit from the storage tank through the vent pipe but through the fill pipe, a lower point in the system; and that the plaintiff was negligent in erecting an installation which allowed the escape of vapors into the basement where the furnace fire was located. Defendant contends that...