Keystone-Fleming Transport v. City of Tahoka

• Decision Date: 10 May 1954
• Docket Number: No. 6394,KEYSTONE-FLEMING,6394
• Citation: 277 S.W.2d 202
• Parties: TRANSPORT, Inc., Appellant, v. CITY OF TAHOKA, Appellee.
• Court: Texas Court of Appeals

Page 202

277 S.W.2d 202

KEYSTONE-FLEMING TRANSPORT, Inc., Appellant, v. CITY OF TAHOKA, Appellee.

No. 6394.

Court of Civil Appeals of Texas, Amarillo.

May 10, 1954.

Rehearing Denied Sept. 27, 1954.

McWhorter, Howard, Cobb & Johnson, Lubbock, for appellant.

Calloway Huffaker & Harold Green, Tahoka, for appellee.

PITTS, Chief Justice.

This is a venue action that arose out of a property damage suit filed by appellee, the City of Tahoka, against appellant, Keystone-Fleming Transport, Incorporated, as a result of an alleged explosion from a fire then burning involving two trucks and semitrailers loaded with tanks of liquid gas, which explosion threw a part of an exploded tank into appellee's fire truck standing nearby and damaging the same. Appellant filed its plea of privilege seeking to have the suit transferred to Lubbock County, the county of its residence and where it had its principal place of business. Appellee timely filed its controverting affidavit, alleging venue in Lynn County under the provisions of Subdivisions 9 and 23 of Article 1995, Vernon's Revised Civil Statutes, and the venue issue was heard without a jury by the trial court, which overruled the plea of privilege and an appeal has been perfected from such order.

The record does not reveal when appellee filed its original petition but its first amended petition was filed on August 19, 1953, and the issues were heard under the venue statute before Subdivision 9 thereof was amended by the 53rd Legislature in 1953. The said amended petition was made a part of appellee's controverting affidavit. Appellee there pleaded that appellant was engaged in selling and transporting by trucks butane throughout West Texas; that while making deliveries of such butane, two of appellant's trucks, while both were travelling east on a public highway, collided as a result of some sort of negligence of one or both operators of the trucks causing an explosion and a hazardous fire on the highway about six miles west of Tahoka; that the collision could not have occurred in the absence of negligence of one or both truck operators; that the Tahoka City volunteer fire chief and his volunteer firemen went to the scene of the fire to render aid when and where another explosion of the burning trucks occurred which resulted in damages done in the sum of $6,000 to appellee's fire truck; that the said trucks, trailers and tanks loaded with liquid gas were in the exclusive possession, control and management of appellant at the time of the original fire and that the subsequent explosion, which damaged appellee's fire truck, was the proximate result of the original collision and fire. Appellee alleged no specific acts of negligence and further alleged that it did not know the specific acts of negligence the employees of appellant were guilty of but that its damage as a result of the fire and explosion could not have occurred in the absence of negligence on the part of one or both of appellant's employees; that such negligence was a direct proximate cause of appellee's damages; that the negligence of appellant's said agents constituted a trespass and a crime committed in Lynn County within the meaning of Subdivision 9 of Article 1995 while they were engaged within the scope of their employment.

The record reveals that two of appellant's employees were operating two 5-ton trucks with semitrailers attached thereto carrying dual tanks of a water capacity of 2,500 gallons each, loaded with liquid gas when a fire occurred about one or two o'clock early in the morning of April 26, 1953, on a public highway about 6 miles west of Tahoka, Lynn County, Texas, which resulted in the death of the drivers of both trucks, considerable damages done to appellant's trucks as well as to appellee's fire truck, which was voluntarily brought to the scene of the fire in an effort to be of assistance. According to the record no eyewitness survived or was present at the scene of the fire to relate from observation what happened or how such occurred.

The record reveals that by stipulation the parties agreed that the two trucks with semitrailers attached were owned by appellant at the time of the accident and that each of the trucks was being then operated by an employee of appellant at the time of the original fire. Only two witnesses testified at the trial, namely, J. W. Clinton, chief of the volunteer fire department of Tahoka, appellee herein, and J. C. Fleming, secretary-treasurer of Keystone-Fleming Transport, Incorporated, appellant herein, both having been called and placed on the witness stand by appellee. Clinton testified that he, upon notice of the fire, drove alone to it in his own automobile where he found Tom Hale, a deputy sheriff, and somebody else there to whom he paid no attention. He there found both trucks on fire and fire everywhere covering both trucks. One truck was clear of the road on one side and the other one on the other side. The highway runs east and west, was straight for some distance and the ground thereabouts was level. One truck with trailer attached thereto was off the pavement on the north side with the front end further from the pavement than the back end. The other truck was on the opposite side of the road from the first truck and a little east from it with its trailer torn loose and turned bottom side up. Both trailers had dual tanks on them. The front end of the right-hand tank on the north side of the road was caved in and the back end of the left-hand tank on the south side of the road was caved in. From his observance of the tanks Clinton further testified over appellant's objections that he formed an opinion that the two trucks were caved in because they had run together or had collided with each other. Clinton further testified that Tom Hale, deputy sheriff, communicated to town with his two-way radio, through which communication something was said about a body being in each truck. The fire truck came with 8 or 10 volunteer firemen and Clinton directed that the fire truck be placed across the road about 250 feet east of the burning trucks. The firemen pulled the fire hose, hooked it together, pulled it to the burning truck on the south side of the road and turned water on it to cool the truck off in order to see if there was anybody in the cab but nobody was found in the cab. The other truck was too far gone to try to rescue anybody in it. The witness and the other firemen then returned to the fire truck to roll up the hose and move the truck when an explosion occurred that damaged the fire truck very much but the witness could not tell just what happened. From the looks of things it appeared to him that the end of one of the tanks that exploded hit the fire truck and then stopped 1,700 feet from the point of explosion. Clinton testified further that he had never received any instructions concerning fighting fires from anyone and that he did not know at that time that pouring water on a 'popping off' butane or a propane tank would likely cause an explosion but that he 'now knows it'; that, although water was put on the cab, no water was poured on the truck that was popping off and exploded as the truck that was popping off was about 75 feet from the cab they were pouring the water on. Clinton further testified that he and the other men were volunteer firemen and drew no pay for their services from the City of Tahoka.

J. C. Fleming testified that he was secretary-treasurer of Keystone-Fleming Transport, Incorporated, appellant; that appellant's employees, Cecil Collier and another boy whose last name was Jenkins, were operating the trucks in connection with appellant's business of delivering butane and propane gas; that each truck used had a 'pop off valve' which worked automatically in case of an emergency; that the said employees were night drivers and usually began operating the trucks at 7 or 8 o'clock in the evening; that he was in San Antonio when the accident occurred, but heard of it and returned home that day; that he did not at any time go to the scene of the accident but began at once to make an investigation about the matter; that he saw the trucks and tanks at Lubbock after the explosion and fire and that he formed an opinion about the matter based strictly on hearsay; that there were two trucks with the heads caved in and one tank was swollen in the center and had ruptured a bit; that another tank was ripped completely apart and another one had collapsed completely; that he could not tell which truck any of the tanks belonged to after they had all been moved to Lubbock from the scene of the fire; that according to what he heard as a result of his investigation upon his return after the fire, there were two explosions and he gathered that the first explosion was caused by a collision of the two trucks which ruptured the tanks and caused a fire and that the other explosion occurred after the fire truck arrived and that explosion was caused by the firemen pouring cold water on the hot tank, which exploded and caused a part of the tank to fly away 'and hit the fire truck and then ricket off the truck'; that his investigation revealed that the 'pop off valves' on the tanks were working after the original fire occurred and that the firemen present poured cold water on the hot tanks, causing the steel to crystallize, rupture and explode, which resulted in the damages done to the fire truck; that the said explosion would not have occurred or the fire truck have been damaged had the firemen not poured cold water on the hot tanks; that both truck drivers lost their lives as a result of the accident; that his investigation revealed that no surviving person saw what happened to cause the first explosion which resulted in the fire but it is supposed that the driver of the front truck threw on his brakes and started to turn at a highway intersection and the other truck was following too closely behind to avoid a collision and ran into the front...