Murphy v. Petrolane-Wyoming Gas Service

• Decision Date: 22 May 1970
• Docket Number: No. 3789,PETROLANE-WYOMING,3789
• Citation: 468 P.2d 969
• Parties: 7 UCC Rep.Serv. 975 Thomas J. MURPHY d/b/a Murphy's Gillette Drug, Maryland Casualty Company, and Sun Insurance Company, Appellants (Plaintiffs below), v.GAS SERVICE and McCulloch Gas Transmission Company, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 969

468 P.2d 969

7 UCC Rep.Serv. 975

Thomas J. MURPHY d/b/a Murphy's Gillette Drug, Maryland Casualty Company, and Sun Insurance Company, Appellants (Plaintiffs below), v. PETROLANE-WYOMING GAS SERVICE and McCulloch Gas Transmission Company, Appellees (Defendants below).

No. 3789.

Supreme Court of Wyoming.

May 22, 1970.

Rehearing Denied July 1, 1970.

Thomas E. Lubnau, Gillette, for appellants.

Edward E. Murane and G. G. Greenlee, of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for Petrolane-Wyoming Gas Service.

Morgan & Brorby and Wade Brorby, Gillette, for McCulloch Gas Transmission Co.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice PARKER delivered the opinion of the court.

On March 4, 1966, the Gillette drugstore of plaintiff-Murphy was destroyed by fire, occasioned when he attempted to light a water heater in the basement. He and his two insurers sued Petrolane-Wyoming Gas Service, distributor, and McCulloch Gas Transmission Company, the one furnishing gas to the distributor, for $115,000 damages, ¹ alleging, inter alia, express and implied warranty and negligence in (a) allowing casinghead gasoline to enter the supply line thereby causing the fire and (b) failing to warn Murphy that liquefiable hydrocarbons had condensed into casinghead gasoline and to give adequate instructions and directions after the condensation became apparent to defendants. There was a general denial and among other defenses Murphy's sole and contributory negligence was asserted. The court found that there had been no breach of warranty either express or implied and that plaintiff was barred from recovery because of contributory negligence, entering judgment against plaintiffs. ²

On appeal plaintiffs urge the court's error in failing to find a breach of express warranty against Petrolane and of implied warranty against both Petrolane and McCulloch; insist that the defendants were strictly liable to Murphy (a) in tort and (b) as a matter of law for the damage by their negligence, which in no way was contributed to by Murphy; and further complain that the trial court erred in not allowing evidence of post-accident changes in the design of McCulloch's transmission line.

There was no dispute in the facts which led up to the fire:

McCulloch had a gas distribution system, including a six-inch transmission pipeline from Rockypoint Field in northern Campbell County to the Raven Creek Oil Field west of Moorcroft. Its source of gas also included a field some forty miles along its main line and the Kern County Land Company plant north of Rozet, which was adjacent to the 30-mile Gillette extension constructed by McCulloch during the late summer and early fall of 1965 and which consisted of four and three-inch pipe from a point north of Moorcroft to Gillette. A fifth of the six-inch pipeline and about a half of the extension were buried, the remainder being on the surface. A natural gasoline plant was located at Rockypoint, which removed liquefiable hydrocarbons from the natural gas before sending it to the pipeline. ³ The first line included a pigging arrangement, that is, a rubber sphere launched at Rockypoint, which gas pressure would move through the line to the pigging station west of Moorcroft, requiring anywhere from eight hours to thirty days to traverse the line. After March 4 the sphere did not pass the West Moorcroft Field for three or four days (which would logically seem to indicate amounts of liquid hydrocarbons pushed ahead of it into the Gillette line at the time of the difficulties). Approximately 500 barrels of liquefiable hydrocarbons were recovered at the separator at Moorcroft during a year, one to two hundred barrels having been recovered at one time. These liquid hydrocarbons were sold as natural gasoline. No drips were installed in the McCulloch line, and there was no arrangement for the sphere to be used in the extension line to Gillette. Petrolane purchased from McCulloch with delivery at its plant in Gillette and maintained a distribution system there to various customers, including Murphy. About 11:30 a. m., March 3, 1966, Petrolane's alarm indicated a drop in pressure, the weather conditions then and immediately previous having been windy and cold (around zero degrees Fahrenheit). Lower hydrocarbons normally in a liquid state are soluble, and in lighter hydrocarbons like methane they exist as a gas with the higher hydrocarbons, the vapor pressuer of the mixture determining whether they exist in a gaseous or liquid state-temperature having a definite effect on the vapor pressure, i. e., the colder it is the more condensate. When the alarm system went off on the morning of March 3, Petrolane's local manager, Forster, contacted McCulloch's pipeline superintendent, Elledge, who took steps to increase the pressure. That evening Forster and his crew discovered liquids in their lines. They blew a line at the Sands Motel, again contacted Elledge, and started up their auxiliary system, which was employed in part during the night of March 3 and 100 percent from the morning of March 4 continuing until the afternoon when the load started and they began again to use from McCulloch. Forster was told by Elledge that if some liquid had in fact come into Gillette it was probably in the form of a 'slug.' About ten days before the trouble in Gillette, McCulloch had been aware there had been some liquids in the line sufficient to cause difficulties at the U. S. Smelting plant, located on the Gillette extension some ten miles after the takeoff from the main line.

During the evening of March 3 Petrolane employees made two residential calls in addition to the one to the Sands Motel, and in the early morning of March 4 were summoned to the Gillette Bakery, across the alley from Murphy's drugstore. Forster went into the basement to see if the pilot lights were out, removed the meter nuts and found the meter full of liquid. Following some preliminaries, he took out about thirty-five gallons of oily, flammable material, and after relighting at the bakery left between 4:30 and 4:45 a. m. He then called Plunkett of the Corner Drugstore, north of Murphy's, who came to his store, and Forster reinstated service there. Between 5:30 and 6 a. m., he called Murphy at home, awakening him, and told him they had a problem with the system and were sure his pilot lights were out and side they would like to get in his drugstore to reinstate service. Forster thought he also said they would like to do this so that it would be warm when he opened the store and was concerned that the pipes might freeze. He testified further, 'I called Mr. Murphy * * * and told him that we had had some problem with our system and were quite sure that his heating equipment was off in his drugstore and we would like to have access to the store to relight his equipment and warm the * * * (stopping).' Murphy said he was sleeping when he received Forster's call at approximately 6 a. m. and when Forster said he would like to have Murphy come down to the store and let him in so they could check the pilot lights, Murphy queried the reason and was told they were having some trouble in the alley with their lines. Murphy asked if it could not wait until 7:30 a. m. when the store would be open and Forster said he would like to get in and check as there might be some pipes freeze. Murphy replied that he didn't think they would freeze in an hour and a half, and that an employee would open the store at 7:30 a. m. When Forster indicated they would like to get in the store at that time, he said he received only a vague reply from Murphy.

During the morning, Forster serviced various other customers, at two of which there were flash fires. Meanwhile at 7:30 a. m. Charlotte Heinrich, an employee of Murphy, had opened the drugstore. She called Petrolane shortly after 8 a. m., asking them to light the water heater and furnace, and was advised that someone was working in the alley, and to the best of her recollection she called again later requesting the service.

Murphy arose at approximately 8:30 a. m. and arrived at the store at 9:15 a. m. His employees complained of the cold and that there was no hot water for the dishes. He inquired if Petrolane had been there yet and when advised in the negative went to the basement and attempted to light the hot water heater. He said that after removing the covers from the place of access to the pilot on the heater he saw that the pilot light was out. He then turned the control valve to the pilot position, lit a match, depressed the red button which controlled the gas to the pilot, touched the match to that area, and after what he thought was a minute took his thumb off. He did not hear the characteristic sound of the pilot burning, looked, and saw a ball of flame approximately the size of a tennis ball in the area of the pilot. He did not turn the water heater control to off, attempted to suppress the fire by blowing it out, almost succeeded, but ran out of breath. He then noticed there was a stream of fire descending to the floor from the pilot area. It reached the floor, a distance of some eight to ten inches, and formed a path less than an inch in width somewhat to the right of the heater. Cardboard cartons were located approximately three feet from the water heater and these caught fire. Murphy ran upstairs, hollered that there was a fire in the basement and to call the fire department, grabbed an extinguisher in the rear of the store, returned to the basement, and attempted to put out the conflagration. He had it almost suppressed but the fluid in the extinguisher became depleted. When he first went into the basement, he did not notice the odor of gas. In attempting to light the pilot, he was down on one knee and did not detect any fluid on the floor.

EXPRESS WARRANTY

Plaintiffs first argue that the court erred in failing to find a breach of express warranty against Petrolane, listing as one basis...