McDonald v. Wheeling Pipeline, Inc.

• Decision Date: 13 February 1964
• Docket Number: No. 10134,10134
• Citation: 162 So.2d 408
• Court: Court of Appeal of Louisiana — District of US
• Parties: Keeneth Ellis McDONALD, Plaintiff-Appellee, v. WHEELING PIPELINE, INC., et al., Defendants-Appellants.

Page 408

162 So.2d 408

Keeneth Ellis McDONALD, Plaintiff-Appellee, v. WHEELING PIPELINE, INC., et al., Defendants-Appellants.

No. 10134.

Court of Appeal of Louisiana, Second Circuit.

Feb. 13, 1964.

Rehearing Denied April 13, 1964.

Writ Refused May 27, 1964.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellants.

Madison, Madison, Files & Garrett, Bastrop, for appellee.

Before HARDY, AYRES, and BOLIN, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiff seeks to recover damages for personal injuries, as well as damage to property, arising out of a fire and explosions at his wholesale gasoline and oil station in Bastrop, Louisiana, July 3, 1962. Made defendant in addition to Wheeling Pipeline, Inc., is its public liability insurer.

Negligence charged to the named defendant and its employee consists in delivering gasoline from its truck into plaintiff's storage tanks with defective equipment and in permitting gasoline to escape without the exercise of reasonable precautions. The defendants deny responsibility on the part of Wheeling's employee and charge, in the alternative, negligence, at least, contributing to the occurrence of the accident, on the part of plaintiff's employee. These charges relate to the manner of the delivery of gasoline into a 55-gallon drum to a customer simultaneously with defendant's delivery of gasoline to plaintiff's storage tanks.

From a judgment in plaintiff's favor, defendants appealed. By answer to the appeal, plaintiff seeks an increase in the awards.

Concerned on the appeal is, first, a question of liability and then, if this issue is resolved adversely to defendants, a question of proper awards for the injuries and damages sustained.

The issue on the question of liability is factual in character. Prerequisite to its discussion is a re sume of the material facts.

Plaintiff, McDonald, owns and operates a wholesale gasoline and oil station, commonly referred to as a bulk plant. On the morning of the accident, one Jeff Mitchell drove a tractor, to which was attached a homemade trailer, to the plant for the purchase of 55 gallons of gasoline, to be delivered in a drum loaded on his trailer. After the tractor was parked at the station, a truck and trailer unit of the defendant Wheeling Pipeline, Inc., driven by its employee, B. S. Carter, arrived with a load of approximately 7,000 gallons of gasoline for delivery to McDonald. This unit was parked alongside that of Mitchell. Carter attached a delivery hose, two inches in diameter and ten feet in length, to the pump on the truck and extended the hose across the top of Mitchell's tractor and attached the same to an intake value of plaintiff's underground storage tank.

Both Mitchell and Carter awaited the arrival of plaintiff or his employee. Near 8:00 a.m., James S. Brewster, McDonald's employee, arrived at the plant. Soon thereafter, McDonald arrived. Brewster measured the gasoline supply in the truck tank, whereupon Carter started his motor and began pumping the gasoline into plaintiff's storage tank. Connecting the tank on the truck to the pump was a 3-inch hose, and extending from the pump to plaintiff's underground storage was a 2-inch hose. The record discloses that the 3-inch hose had been replaced with a new one the day before the accident. The 2-inch hose had been in use for a considerable and undetermined length of time. Its fixtures had, however, been replaced the day before.

While delivery of the gasoline was being made into plaintiff's storage tanks, Brewster attached a hose from plaintiff's pump to the drum located on Mitchell's trailer and filled it with gasoline. When this task was completed, Mitchell succeeded, with some difficulty, in cranking and starting his tractor, after which he took his seat in preparation of leaving. His motor missed, backfired, and sputtered. Carter, continuing to unload the gasoline as Mitchell attempted to depart, lifted the hose above the tractor to permit Mitchell to pass underneath. When the hose was thus lifted, a spray of gasoline emitted from the 2-inch hose or from the coupling thereof. The gasoline became ignited, whereupon Carter threw the hose down and rushed around the truck to cut the motor off and, thus, to stop the pump. Whether emanating from a broken hose or from its disconnection with the pump, a full flow of gasoline covered the surrounding...