Marshall v. HUMBLE OIL & REFINING COMPANY

• Decision Date: 03 May 1972
• Docket Number: No. 71-1467.,71-1467.
• Citation: 459 F.2d 355
• Parties: Lilla Mae Ford MARSHALL, Administratrix of the Estate of Floyd M. Marshall, Deceased, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee. Stanley R. MITCHELL, Administrator of the Estate of George L. Mitchell, Deceased, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.2d 355 (1972)

Lilla Mae Ford MARSHALL, Administratrix of the Estate of Floyd M. Marshall, Deceased, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee.

Stanley R. MITCHELL, Administrator of the Estate of George L. Mitchell, Deceased, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee.

No. 71-1467.

United States Court of Appeals, Eighth Circuit.

Submitted February 17, 1972.

Decided May 3, 1972.

Rehearing Denied May 24, 1972.

Rehearing Denied June 7, 1972.

Henry Woods, Sidney S. McMath, McMath, Leatherman & Woods, Little Rock, Ark., for appellants.

W. P. Hamilton, Chowning, Mitchell, Hamilton & Chowning, Little Rock, Ark., for appellee.

Before LAY, BRIGHT and STEPHENSON, Circuit Judges.

Rehearing En Banc Denied June 7, 1972.

BRIGHT, Circuit Judge.

Lloyd M. Marshall, lessee of a service station at Batesville, Arkansas, owned and built by Humble Oil and Refining Co. (Humble), and his employee, George L. Mitchell, sustained fatal injuries in an explosion-fire at the service station. Representatives of each man brought consolidated diversity actions against Humble seeking damages for wrongful death under the Arkansas Wrongful Death Act, Ark.Stat.Ann. § 27-901 et seq. (1962). A jury awarded the representative of the Marshall estate (lessee) $138,000 and the representative of the Mitchell estate (employee) $77,200.

The district court, on motion for judgment n. o. v., set aside these awards and dismissed the actions. The decedents' representatives have brought this appeal, and from our review of the record we conclude that the cases were properly submitted to the jury, and that judgment must be entered pursuant to the jury verdicts.

Both Marshall and Mitchell sustained severe burns over eighty-five to ninety percent of their bodies. Both men died the day following the accident, and only they were present at the time of the explosion-fire. No eye witness could, therefore, testify to the events at the station immediately preceding the onset of the explosion-fire. Humble, in its motion for a directed verdict, and in its post-verdict motion for judgment n. o. v., contended that no substantial evidence existed to support the plaintiffs' claim that Humble's negligence caused these deaths. The district court agreed with this contention and set aside the verdicts as resting upon "speculation and conjecture."

The trial court, in instructing the jury, aptly summarized the crucial issue and the respective contentions of the parties as follows:

It seems to the Court that the real claim of the plaintiffs here, so far as negligence is concerned and proximate cause, is that the defendant was negligent in designing the storeroom, including the equipment therein and the door thereto, without adequate ventilation and without equipping the door with a threshold, with the alleged result being that when the door was closed, whether accidentally or on purpose, the air compressor would pull air under the door and lift it up to such a height that the fumes or vapors in the air would be ignited by sparks from the compressor. Now, if you find from a preponderance of the evidence that the defendant was guilty in the respect just mentioned, and that its negligence, if any, in that regard was a proximate cause of the explosion, then you should find against the defendant, unless you find for it under other instructions of the Court.

Now, on the other hand, the theory of the defendant is that the design of the door, the nature and location of the equipment in the storeroom, and the ventilation of the room had nothing to do with the explosion and that the explosion was caused by the fact that these men were using gasoline in their work in the storeroom, and that one of them while smoking or attempting to smoke ignited these gasoline fumes or vapors and caused the explosion and the flash fire that followed it; and, if you so find from a preponderance of the evidence that this is true, then your verdict should be for the defendant in both cases.

The record discloses the following facts. Lloyd Marshall, five days before the explosion-fire, assumed operation of the station from an earlier lessee of Humble. He was engaged in cleaning operations in the station during the following days. The explosion occurred in a storeroom which is connected to, and is on the same floor level with, the lubrication area where automobiles were serviced. A door connecting these two parts of the station opened into the storeroom. The storeroom contained an air compressor, an electric hot water heater, a gas central heating unit, a fuse box, electrical wiring connections, batteries, oil products, and two oil-grease drums located behind the storeroom door. The storeroom side of the door lacked any doorknob. The electrical switch that activated the compressor motor sat on top of the air compressor tank at a level of forty-seven inches above the floor. This switch was covered but not sealed. The air compressor operated automatically when pumping air into storage tanks which then furnished air under pressure for filling tires. The electric switch of the compressor created an are or spark when it switched on and when it switched off.

The record shows the absence of a floor sill below the storeroom door, although construction specifications for the station called for its installation. As a result, a space of three-fourths inch existed between floor and door-bottom. The plans and specifications for the construction of the station also called for louvers or vents in the storeroom door to be located eighteen inches above the floor level. These vents had not been installed. The storeroom contained a window covered by iron bars. This window was partly open at the time of the explosion. A wall vent, eight by sixteen inches, located at the same level as the air compressor switch also afforded ventilation for the storeroom.

Plaintiffs offered evidence that the explosion-fire had occurred in the storeroom, that the storeroom door was found shut immediately following the explosion, that Mitchell and Marshall were trapped in the storeroom, that a passerby battered down the door, that the compressor motor was off immediately following the explosion-fire, but it had been operating a short time prior to the explosion, and that persons who arrived on the scene saw smoke coming out of the storeroom window and saw fire about one foot high near the wall in the lubrication room.

Appellants-administrators contend that Humble was negligent in its design and maintenance of the station by providing inadequate ventilation for the storeroom and in failing to install a sealed electrical connection in the compressor switch to protect against electrical contact with gas fumes, and that this negligence operated proximately to cause the accident. The representatives of the decedents' estates claimed that the operation of the air compressor served to draw vaporized gasoline into the storeroom through the aperture at the bottom of the door, and that the interaction of warm and cool air currents in the room wafted these vapors in proximity to the spark created by the air compressor as it shut off. Consequently, the spark created by the switch ignited the gasoline vapors in the room and produced the explosion and fire. The appellants point to the testimony about fire along the wall of the lubrication room as showing the presence of gasoline vapors in the lubrication room which might be drawn into the storeroom area.

The district court felt that plaintiffs' evidence upon the issue of negligence, although weak, was sufficient for the jury. We agree. We note that on this appeal Humble argues the insufficiency of the evidence to show that its negligence, if any, proximately caused the explosion-fire.

On this causation question, the defendant-appellee introduced the testimony of a licensed practical nurse in charge of the emergency room of a Little Rock Hospital that Marshall, although suffering severe pain and described as being in a "semi-comatose" condition, stated, "We were cleaning with gas. Mitch lit a cigarette." The plaintiffs, however, produced testimony suggesting the absence of any container in the storeroom containing gasoline.

The jury by its verdict rejected the "cleaning-with-gasoline" theory of the cause of the explosion and fire. The district court, in considering the motion for judgment n. o. v., commented:

The position of the defendants was that the men were using gasoline in their cleaning operation, and that the explosion occurred as a result of one of them lighting a match or operating a cigarette lighter. To support that theory defendant relied in part on certain "dying declarations" of the two men. While the Court permitted the jury to give limited consideration to those declarations, they obviously did not amount to very much in the circumstances, and the jury obviously attached no weight to them.

The district court, however, in rejecting the plaintiffs' theory of causation did so on the basis of the alleged physical impossibility of the explosion occurring in the manner suggested by plaintiffs, because of the absence of any physical evidence of fire at the site of the compressor switch. The court said:

* * * It seems to the Court that if this explosion had been set off by a spark from the switch, the inevitable result would have been a burning, scortching sic or charring of the switch and switch box, and the undisputed evidence is to the effect that neither the switch, nor the switch box, nor adjacent areas on the compressor were at all burned, charred or scorched.

In support of the trial court's action, appellee argues that none of the testimony elicited during...