Kreager v. Blomstrom Oil Co.

• Decision Date: 22 October 1985
• Docket Number: Nos. 14805,14823,s. 14805
• Citation: 379 N.W.2d 307
• Parties: Prod.Liab.Rep.(CCH)P 10,837 Harold KREAGER, v. BLOMSTROM OIL COMPANY, a corporation, and Texaco, Inc., a corporation, . Considered on Briefs
• Court: South Dakota Supreme Court

Page 307

379 N.W.2d 307

Prod.Liab.Rep.(CCH)P 10,837

Harold KREAGER, v. BLOMSTROM OIL COMPANY, a corporation, and Texaco, Inc., a corporation,

Nos. 14805, 14823.

Supreme Court of South Dakota.

Considered on Briefs Oct. 22, 1985.

Decided Dec. 11, 1985.

David J. Larson, of Larson, Sundall, Larson, Schaub & Fox, Chamberlain, for plaintiff and appellant.

Donald E. Covey, Winner, for appellee Blomstrom Oil Co.

John L. Morgan, of Morgan, Fuller, Theeler & Cogley, Mitchell, for appellee Texaco, Inc.

WUEST, Acting Justice.

Appellant Harold Kreager (Kreager) appeals from a judgment following a jury verdict in favor of appellee Blomstrom Oil Company (Blomstrom), and from a directed verdict granted in favor of appellee Texaco, Inc. (Texaco). We affirm.

On July 26, 1977, Kreager's crop-dusting plane crashed during an attempted emergency landing, necessitated by engine failure during takeoff from his private airstrip in Kennebec, South Dakota. Although the plane received extensive damage, Kreager was unharmed.

The plane was examined by an aircraft mechanic shortly after the accident and water was found in its left wing tank. Kreager testified that he put fuel in the left wing tank on the morning of the accident. The fuel was taken from his front storage tank, a 1,000-gallon tank purchased new in March of that year. Kreager further testified that he checked the front storage tank after the accident and found water in the filter cartridge, hose, and tank itself.

The front storage tank lay on its side and was mounted on skids. It was equipped with a pressure vent on top, through which it was filled; a pump that reached to within two and one-half to three inches of the tank's bottom; and, a drain plug at the bottom. The vent cap was padlocked to the pump assembly, which could be screwed out with a wrench.

The only party known to have placed anything in Kreager's front tank near the time of the accident was Blomstrom's delivery man, Robert Bolander, who filled the tank on July 21, 1977, just a few days before the accident. Kreager testified that the fuel he put in his left wing tank just prior to the accident was the first fuel taken from that delivery. He further stated that he was on the ground at the time the fuel arrived, but left to finish a spraying job while the fuel was being unloaded. That was the last time he flew the airplane until the day of the accident. Between the date of the delivery of the fuel on July 21 and the date of the accident on July 26, the area had received 1.65 inches of rain with strong winds.

At the time of the accident in question, Blomstrom was a distributor of gasoline, diesel, and aviation fuel manufactured by Texaco. Blomstrom owns a bulk storage facility in Winner, South Dakota, which consists, in part, of a 10,000-gallon metal tank for aviation fuel.

The Blomstrom tank was a large horizontal, two-compartment tank, situated in a north-south direction, with the aviation fuel compartment located on the southern end. This compartment had four openings: a large opening on the top through which it was filled; a smaller opening through which the level and contents could be checked by means of a stick; a drain through which water or sediment could be drawn off; and, the opening through which the fuel was drawn when loaded into the delivery truck. The latter opening was located on the bottom of the tank and had a pipe protruding into the tank approximately one to one and one-half inches, below which level the fuel could not be drawn.

Water commonly forms in storage tanks through condensation from the atmosphere. Water and fuel separate, and because water is heavier it goes to the bottom of the tank. Blomstrom testified that it was company practice to run off any water which may have formed through condensation over the winter by opening the drain in the bottom of the storage tank.

On July 11, 1977, Blomstrom delivered fuel to Rosebud Aviation in Gregory, South Dakota. That delivery emptied Blomstrom's aviation fuel storage tank except for approximately one inch of fuel at the bottom of the tank, which could not be removed because of the design of the dispersing pump intake. No complaints were received from Rosebud Aviation concerning water in the fuel delivered.

On July 13, a large transport carrying 8,000 gallons of aviation fuel from Texaco arrived at Blomstroms. When a transport of aviation fuel was unloaded at Blomstrom's storage facility, it was the practice that each compartment of the transport, usually five compartments, was inspected for the presence of water by draining a small amount of fuel from each compartment into a bucket. Although no one could recall with certainty whether the July 13 shipment was checked in this manner, Lloyd Blomstrom, principal owner of Blomstrom Oil, testified that the procedure was always followed.

While the transport was unloading on July 13, Blomstrom was also delivering 1,005 gallons of fuel to Western Aviation at the municipal airport in Winner and 375 gallons to Gateway Aerial Sprayers of Winner. There were no reported problems with water in either of these deliveries.

Kreager testified that on the day of the accident he put ten gallons of fuel in the left wing tank to bring it to the same approximate level as the right wing tank. When he checked the airplane after the accident, he found water in the left wing tank and the header tank through which the fuel went from the wing tanks to the engine. The water in these tanks was detected through running it out of the sump onto the palm of the hand. Later, the storage tanks were checked and water was found in the front storage tank, but none was found in the back tank nor in Kreager's truck tank. All of these tanks had been filled by Blomstrom on July 21.

In the front tank, water was found in the nozzle and filter, and approximately a week later water was drained out of the left wing tank. The water found was described as rusty and dirty, with particles floating in it. Lloyd Blomstrom testified that water or fuel, as so described, would not pass through the filters on teh company delivery truck.

Kreager reported the accident and the water in his fuel tank to Blomstrom shortly after the accident. When he received the message, Lloyd Blomstrom checked the aviation fuel storage tank, using a measuring stick with litmus paste, a water-detecting substance, on the end of the stick. The delivery man made the same check and Blomstrom brought Donald Bice of Western Aviation in to make the same check. These checks indicated moisture at a depth of less than an eighth of an inch. Blomstrom checked with their other customers, Western Aviation, Gateway Aerial, and Rosebud Aviation, and none had water in their fuel tanks.

Kreager sued on a theory of strict liability, claiming a defect in the aviation fuel sold to him by Blomstrom, which had been manufactured by Texaco. The case was tried before a jury and, after the close of Kreager's case-in-chief, the trial court granted Texaco's motion for directed verdict. Thereafter, the jury returned a verdict in favor of Blomstrom and judgment was rendered thereon. On appeal, Kreager contends: (1) that the trial court erred in denying a specific jury instruction proposed by Kreager; and (2) that, under the evidence, the trial court erred in granting Texaco's motion for directed verdict. We disagree.

Kreager argues that the trial court committed prejudicial error by refusing his proposed jury instruction, which stated that he was not required to eliminate all other possible explanations of causation regarding the accident in question. Kreager cites Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 256 (S.D.1976), for this proposition, wherein this court stated: "We do not require that plaintiff eliminate all other possible explanations of causation that the ingenuity of counsel might suggest. It is sufficient that plaintiff negate his own and others' misuse of the product." (Citing Daleiden v. Carborundum Co., 438 F.2d 1017 (8th Cir.1971); Friedman v. General Motors Corporation, 43 Ohio St.2d 209, 331 N.E.2d 702 (1975).)

When a proposed theory is supported by competent evidence, the trial court must instruct the jury on the applicable law, and failure to so instruct constitutes prejudicial error. Rosenberg v. Mosher, 331 N.W.2d 79 (S.D.1983); Atyeo v. Paulsen, 319 N.W.2d 164 (S.D.1982); Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (1970). But as we stated in Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979):

It is not error, however, to refuse to amplify instructions given which substantially cover the principle embodied in the requested instruction. Egan v. Sheffer, [86 S.D. 684, 201 N.W.2d 174 (1972)]; Jorgenson v. Dronebarger, 82 S.D. 213, 143 N.W.2d 869 (1966); Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410 (1949). Instructions are adequate when, considered as a whole, they give a full and correct statement of the applicable law. Mueller v. Mueller, 88 S.D. 446, 221 N.W.2d 39 (1974); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958).

To recover under a theory of strict liability, the plaintiff must prove by a preponderance of the evidence that the product was defective when delivered. Smith v. Smith, 278 N.W.2d 155 (S.D.1979); Schaffer v. Honeywell, supra; Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973). The existence of a defect may, of course, be established by circumstantial evidence. Fajardo v. Cammack, 322 N.W.2d 873 (S.D.1982). The trial court's instructions in the instant action adequately and fairly stated these rules of law.

In accord with the general rule, the trial court instructed the jury that the "party who asserts the affirmative of an issue must prove it by the greater weight of the evidence." Further, the court instructed the jury that the burden was upon Kreager to prove that the defect existed at the time the aviation fuel left Blomstrom's control. Finally, the court explained that direct and...