Harris v. Gulf Refining Company

• Decision Date: 16 January 1957
• Docket Number: No. 15853.,15853.
• Citation: 240 F.2d 249
• Parties: L. J. HARRIS, Appellant, v. GULF REFINING COMPANY and J. J. Bordelon, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

240 F.2d 249 (1957)

L. J. HARRIS, Appellant, v. GULF REFINING COMPANY and J. J. Bordelon, Appellees.

No. 15853.

United States Court of Appeals Fifth Circuit.

January 16, 1957.

J. Robertshaw, Greenville, Miss., William E. Robertson, Sarasota, Fla., Robertson & Robertson, Sarasota, Fla., of counsel, for appellant.

Forrest B. Jackson, Jackson, Miss., Charles S. Tindall, Jr., Greenville, Miss., Wynn, Hafter, Lake & Tindall, Greenville, Miss., of counsel, for appellees.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment on a directed verdict for defendants at the conclusion of plaintiff's case in a suit to recover damages for the destruction of plaintiff's motor cruiser in an explosion and fire allegedly caused by the negligence of one of the defendants or of his servant.

The following facts appear from plaintiff's evidence. In April 1952 plaintiff embarked on an extensive trip in his motor cruiser through the coastal waters and rivers of the United States. After having traveled some 5000 miles and having found no fault with the vessel, he arrived on August 21, 1952, in Greenville, Mississippi, and moored at the Yacht Club barge. He ordered gasoline from the defendant Bordelon, distributor for the defendant Gulf Refining Company, and a tank truck was driven over to the Club by one of Bordelon's employees. A long hose with a nozzle was extended to the boat and defendant's driver started to fill the starboard tank. Plaintiff noticed a steady drip from the nozzle and thereupon inserted a wide mouthed funnel into the filler cap to catch the drip. He instructed the driver to place the nozzle into the funnel, told him of a warning whistle that would indicate when the tank was about full, and then went to the other side of the boat. When he returned a short time later gasoline was swirling in the funnel and overflowing from it to various parts of the boat; the driver said that he was unable to shut off the flow, so plaintiff reached in and pulled up a lever on the nozzle which closed it. The driver then told him that he had had trouble on other occasions in shutting off the nozzle because the spring in it was too weak against the force of the pump in the truck. While the port tank was being filled without incident under plaintiff's supervision and the truck driven off, plaintiff, his wife, and his niece started cleaning up all visible traces of the gasoline and turned on the fans to blow out any fumes. The driver was not requested to help, nor, apparently, was Bordelon notified of the mishap by the plaintiff. After leaving the boat for about 45 minutes plaintiff and his family returned, carefully checked again for evidences of gasoline, cast off the barge, and drifted free of any oil in the water. The engines were then started and the boat moved under power about 200 feet and then exploded.

At the trial plaintiff was qualified and testified as an expert on the operation, maintenance, and safety practices of motor boats.

Plaintiff's theory of the accident is that defendant Bordelon's driver either negligently disregarded the warning whistle or more likely was unable to shut off the flow when the tank was filled because of a defect in the nozzle mechanism. The use of the funnel is asserted to have made no difference except to cause the spillage to occur at a higher level and thus some gasoline flowed over the coaming into the cockpit of the boat. The moving of the boat so soon after the mishap was a safety precaution because of the gasoline that surrounded the boat in the water. The explosion resulted from the ignition of vapors of some hidden gasoline by a spark from the exhaust.

Defendants claim that the spillage was caused by the inability of the funnel to take the full inflow of gasoline against the upsurge of air from the tank. Also it is argued, against plaintiff's contention, that the boat would have been in no danger if it had been kept moored to the same spot, and the explosion thus resulted from the premature attempt to move it by the use of its engines following a careless cleanup of the gasoline.

At the conclusion of plaintiff's evidence defendants moved for a directed verdict on several grounds. The court, in an oral opinion, stated that he would direct a verdict against plaintiff on the ground that since he was an admitted expert on boating practices, fully aware of the dangers of the situation, he assumed the risk of the consequences of any damage resulting from the spilled gasoline by deciding to put his boat into operating condition himself, rather than requiring Bordelon to do so.

In support of the court's decision the defendants argue that plaintiff assumed all risks of the consequences by: (1) assuming control over Bordelon's driver and directing the insertion of the funnel whose use resulted in the spillage; (2) assuming sole responsibility for the cleanup which was evidently performed inadequately; (3) starting the engines prematurely and with full knowledge of the possible presence of more spilled gasoline.

Plaintiff in effect contends that the first point is irrelevant since the spillage occurred because of a defect of the nozzle, known to defendant's employee, which made him unable to shut off the flow; the use of the funnel at most changed the place of the spillage.

Defendants urge that Mississippi has a rather broadly inclusive assumption of the risk rule. However, the cases cited for this general proposition, in which it has been held that plaintiff has assumed the risk as a matter of law, all involve instances in which such a conclusion is far more obvious. In McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350, 176 So. 395, plaintiff left his ox in a field with a plainly visible open ditch into which the animal fell and was drowned; in Saxton v. Rose, 201 Miss. 814, 29 So.2d 646, plaintiff passenger voluntarily rode in a car with an obviously drunk driver — in that case the Supreme Court of Mississippi defined the difference between contributory negligence and assumption of the risk as the distinction between "carelessness" and "venturousness"; in Runnels v. Dixie Drive-it-Yourself System Jackson Co., 220 Miss. 678, 71 So.2d 453, 46 A.L.R.2d 397, plaintiff rented a car and drove it at high speeds even though he detected a strong shimmy.

The most nearly similar Mississippi case is Standard Oil Co. of Kentucky v. Evans, 154 Miss. 475, 122 So. 735, in which a filling station attendant through inattention permitted gasoline to...