Lucht v. American Propane Gas. Co.

• Decision Date: 06 December 1968
• Docket Number: No. 36728,36728
• Citation: 183 Neb. 583,162 N.W.2d 891
• Parties: Paul LUCHT, d/b/a Paul Lucht Boyd Shop, Appellee, v. AMERICAN PROPANE GAS CO., a Corporation, Phillips Petroleum Co., a Corporation, and Transport Repair Service, Inc., a Corporation, Appellants.
• Court: Nebraska Supreme Court

Page 891

162 N.W.2d 891

183 Neb. 583

Paul LUCHT, d/b/a Paul Lucht Boyd Shop, Appellee, v. AMERICAN PROPANE GAS CO., a Corporation, Phillips Petroleum Co., a Corporation, and Transport Repair Service, Inc., a Corporation, Appellants.

No. 36728.

Supreme Court of Nebraska.

Dec. 6, 1968.

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor, and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

2. The general rule where a party is responsible for a dangerous instrumentality is that he is charged with the duty to take suitable precautions to avoid injury or damage to persons or property rightly in its proximity, and a failure to do so is negligence.

3. In an action based on negligence to which the comparative negligence rule has application, wherein the evidence shows beyond reasonable dispute that the plaintiff's negligence was more than slight in comparison with that of the defendant, the action should be dismissed.

4. For an error of law occurring at the trial to be considered by this court, the alleged error must be properly presented to the trial court and properly preserved. Otherwise, the appellant is precluded from raising it on appeal.

5. Instructions given to a jury must be construed together, and if when considered as a whole they properly state the law, that is sufficient.

John E. Dougherty, York, Fraser, Stryker, Marshall & Veach, Omaha, for appellants.

Eisenstatt, Morrison, Higgins, Miller, Kinnamon & Morrison, McCormack, McCormack & Brown, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, McCOWN and NEWTON, JJ.

SPENCER, Justice.

This is an action for damages sustained to property of the plaintiff in an explosion and fire, which occurred November 11, 1963, on the premises of the plaintiff when plaintiff subjected a propane tank truck, delivered to him for painting, to intense heat in a bake oven as part of the painting and drying process. A jury returned a verdict against all defendants in the sum of $86,200. Defendants perfected appeals to this court.

In determining the sufficiency of evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Thompsen v. Miller, 177 Neb. 530, 129 N.W.2d 498.

Applying the criterion above, we determine the facts to be as set out herein: American Propane Gas Company, a corporation, hereinafter referred to as American, delivered the truck, which was propelled by propane gas, to Phillips Petroleum Company, a corporation, hereinafter referred to as Phillips, for repair and painting. The truck in question carried liquid propane gas in two side-by-side cargo tanks, with a smaller supply tank on top which was used to propel it. After Phillips had completed the repair work, McCord, the district maintenance supervisor for Phillips, had the truck delivered to plaintiff to be painted because Phillips did not have the facilities to do the work.

Before it delivered the truck to Phillips, American pumped out all of the liquid gas in the two cargo tanks on the truck but, having no facilities to do so, did not steam clean or purge them. After Phillips' employees delivered the truck to plaintiff's premises, the plaintiff observed that one of the petcocks on the truck was frosted, which indicated to him that the tank still had some gas in it. Plaintiff then called McCord, told him about the petcock, and advised him that he would not paint the truck unless it was purged. He also told McCord that since the exterior of the truck was rough it should be sandblasted. Neither plaintiff nor Phillips had the facilities to sandblast or purge the vehicle. It is plaintiff's testimony that McCord instructed him to send the truck to Transport Repair Service, a corporation, hereinafter referred to as Transport. It is McCord's testimony that he instructed plaintiff to obtain a bid on the sandblasting and purging.

Exhibit 67 is an invoice furnished by plaintiff, dated November 7, 1963. This invoice indicates that plaintiff was to bill Phillips for the sandblasting and purging as well as for the painting. Plaintiff delivered the truck to Transport. Subsequently, Transport's foreman called plaintiff and told him they would not sandblast the truck unless it was purged. Plaintiff told him that was what it was sent down for, and asked the cost. The foreman could not give plaintiff an estimate. Later, plaintiff obtained a bid by telephone from Reuben Johnson, Transport's president. Plaintiff communicated this bid to McCord, who thought it was too high. McCord told plaintiff he would have to check it out with his employers, which he did. In the interim, McCord happened to see Johnson at a restaurant, and asked him about the bid and was told he could take it or leave it. On this occasion, Johnson told McCord that Transport would not sandblast the truck without purging it. Subsequently, McCord received authority to accept the bid. He attempted to contact the plaintiff, who was out of the city. When he could not do so, he called Transport's foreman by telephone and told him to go ahead with the job. The next day McCord told plaintiff he had instructed Transport to go ahead with the job.

McCord did not have possession of the truck after it was delivered to plaintiff. McCord had no contact with Transport after he told Transport's foreman to go ahead with the job, or with plaintiff after he relayed this information to him, until after the explosion. He did not see the truck after plaintiff delivered it to Transport. When he told Transport's foreman to go ahead with the job, it was his understanding the truck would be purged, because he had been told Transport would not sandblast the truck without purging it and that plaintiff would not paint it unless it was purged. The bid which he had submitted to his superiors was for both jobs.

After Transport sandblasted the truck, its foreman called plaintiff and told him the truck was ready. Plaintiff sent an employee to bring the truck back to his shop, but did not receive a work order or ascertain what work Transport had done. This was sometime Friday afternoon, November 8, 1963. The employee who painted the truck testified that when he began work that afternoon, he detected the odor of gas. It smelled like rotten eggs. He could smell gas even when the truck was not running. Neither this employee nor the plaintiff checked to see if the truck had actually been purged. The evidence is undisputed that this fact could have been readily determined by turning a petcock.

The lower portion of the truck was painted on Saturday and driven into the bake oven for a period of 15 minutes to dry the paint. This bake oven is heated to 180 degrees for the drying process. Monday, November 11, 1963, the painting on the truck was completed and it was backed into the bake oven about 11:15 a.m. When the painter returned from lunch, about 1 p.m., he heard a hissing noise coming from the furnace room. He ran to that room and turned the switch which controlled the flame of the furnace. He then said to his foreman, 'I think there's something wrong,' and the explosion occurred. Less than a minute elapsed between the time the painter heard the hissing noise and the explosion. It was this employee's testimony that at the time he drove the truck into the bake oven he knew it contained some form of gas.

After the explosion, in the presence of plaintiff, Johnson, Transport's president, told the fire captain that the truck had been purged. It is undisputed that the truck had not been purged, and that Transport did not inform plaintiff or his employees of this fact.

American and Phillips moved for directed verdicts at the...