Gulf Refining Co. v. Delavan, 14188.
| Decision Date | 15 May 1953 |
| Docket Number | No. 14188.,14188. |
| Citation | 203 F.2d 769 |
| Parties | GULF REFINING CO. et al. v. DELAVAN et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. B. Edwards and David W. Stephens, Ft. Worth, Tex., George W. Dupree, Lubbock, Tex. (Archie D. Gray, Houston, Tex., of counsel), for appellants.
E. L. Klett, Lubbock, Tex., Klett, Bean & Evans, Lubbock, Tex., for appellees.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
The suit was for damages to a pumping unit consisting of oil storage tanks and loading facilities caused by a fire occurring while a truck belonging to defendants was loading oil from a tank battery located on the J. W. Young lease, Kent County, Texas.
The petition alleged: specific negligent acts of the driver and operator of the truck; specific negligent acts of its owner, and also general negligence in respect of which plaintiff invoked the doctrine of res ipsa loquitur.
In their answer, the defendants denied each and all of the allegations of negligence and, by affirmative defense, alleged that all of the facilities were operated or provided by plaintiffs and intervenors and under their control and possession, and that if there was any negligence it was the negligence of persons other than the defendants or those for whose acts the defendants were responsible. They likewise by cross action sought a recovery for the damage to their truck.
Tried to a jury on the issues thus joined, there was a full trial and, at the conclusion of all the evidence, the defendants moved for a directed verdict.1
The district judge, of the opinion that the motion was well taken, directed a verdict for the defendants and against plaintiff and intervenor on their suit, and against defendants on their cross bill.
Appealing from the judgment on that verdict, plaintiff and intervenor are here insisting that whether viewed from the standpoint of general negligence and the application of the doctrine of res ipsa loquitur or from the standpoint of the specific allegations of negligence, they made out a case for a jury verdict and it was error to instruct a verdict against them.
Urging upon us that the identical questions under identical facts were considered in Tyreco Refining Co. v. Cook, Tex.Civ. App., 110 S.W.2d 219, 221, and that there, under a pleading of res ipsa loquitur, the court, upon proof that the loading operations were under the management of the defendants, owners and operators of the refinery, held that a case was made out for a jury verdict, they insist that upon the authority of that case and others cited by them, it was error to instruct a verdict.
They further urge upon us that the testimony of the truck driver that he closed the hatch of the tank truck with his foot, makes out a case for submission to the jury upon whether this method of closing the hatch was negligent and whether it thereby caused a spark or friction which ignited the fire, made an issue for the jury upon the specific allegations of negligence.
Finally, they urge that the case should be reversed because of the rulings of the district judge in excluding from evidence as part of the res gestae, statements, made by the truck driver shortly after the fire, with respect to his having closed the hatch cover by kicking it with his foot, and that just as soon as he kicked the hatch the blaze started.
Appellees counter all of these positions: As to the plea of res ipsa, they urge upon us that the very case on which appellants rely, Tyreco v. Cook, holds flatly, "It is true that the application of this doctrine, known as res ipsa loquitur, does not apply unless it be shown that the negligent cause or thing which produced the injury was under the exclusive control or management of the defendant, its servants, agents, and employees", 30 Tex.Jur., p. 803.
They call attention to the facts of record: that the tanks and the loading equipment were not in the possession or control of the defendants but of those whose claims plaintiff and intervener had acquired by assignment; and that the evidence wholly fails to show that the fire was caused by those portions of the instrumentalities in the possession and control of the defendants.
Countering the claim that the evidence, that the driver closed the hatch of the tank with his foot, is sufficient to permit the case to go to the jury, plaintiffs call attention to the undisputed evidence that the fittings of hatch cover and tank were not spark forming and that contact between them would not cause sparks, they point also to the evidence that the method and manner in which the driver closed the hatch was customary and usual and to the fact that there was no testimony to the contrary.
Finally, they point to the complete lack of evidence from which could have been reasonably determined either what caused the fire, or that its cause was something untoward, unusual, or of negligent character, occurring in connection with the truck owned by and in charge of defendant.
As to the objections to the exclusion of Miles' statement as to how he closed the hatch, they point to the record showing that Miles himself testified that he did close it by using his foot and further insist that the testimony of the admission or statements made by the driver was admitted by the court both in impeachment of the driver's evidence and in effect as independent evidence.
Based upon all of these contentions, they urge upon us that the verdict was rightly instructed.
We agree with appellees. The rule as to res gestae as stated in the Tyreco case is the general rule and ordinarily the doctrine of res ipsa loquitur presupposes that the defendant has exclusive control of the instrumentalities or thing causing the damage, 38 Am.Jur., Negligence, 295. It is also true, however, that there are cases holding, and perhaps the tendency of the modern view outside of Texas is, that it is not essential that all of the instrumentalities be in the exclusive control of the defendant. It is sufficient if some of them are in his control and there is evidence from which it may be more reasonably inferred that the injury occurred from this source than from some other.
Even under this extension of the rule, it yet remains true, however, that the mere occurrence of an injury does not give rise to the rule of res ipsa. The evidence as a whole must reasonably support the inference that the thing in the control of the defendant rather than something else was the cause of the injury and it is only when this situation exists that the defendant is...
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