Pan American Petroleum Co. v. Byars

• Decision Date: 22 March 1934
• Docket Number: 6 Div. 462.
• Citation: 153 So. 616,228 Ala. 372
• Parties: PAN AMERICAN PETROLEUM CO. v. BYARS.
• Court: Alabama Supreme Court

153 So. 616

228 Ala. 372

PAN AMERICAN PETROLEUM CO. v. BYARS.

6 Div. 462.

Supreme Court of Alabama

March 22, 1934

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Action on the case by Mrs. J. B. Byars against the Pan American Petroleum Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Cabaniss & Johnston, of Birmingham, for appellant.

David J. Davis and C.J. Griffith, both of Birmingham, for appellee.

KNIGHT Justice.

Plaintiff Mrs. J. B. Byars, brought this action against the Pan American Petroleum Company to recover damages for an injury to certain land owned by her in Blount county, Ala. The plaintiff stated her cause of action in four counts, the first, second, and fourth being in case, while the third amended count was in trespass. The real basis of plaintiff's claim was that the defendant permitted gasoline to leak or escape from tanks or pumping equipment which defendant had installed in or at a filling station leased by it, into a well or wells upon certain lands of plaintiff located at Allgood, in Blount county.

The defendant, in answer to the complaint, pleaded in short by consent, the general issue, contributory negligence, assumption of risk, statutes of limitations, estoppel, and release.

There was no dispute in the evidence that the well or wells were located on property of the plaintiff; that one of them had been in use as the source of water supply for drinking and other domestic purposes by plaintiff's tenants for a number of years, while the other wells were dug by the plaintiff, after the pollution of the original well, in an effort to get water not so polluted, for the use of her tenants on the land.

There was evidence in the case from which it might be inferred that the first or original well had been polluted by seepage of gasoline into it to such extent that the water was unfit for use. There was also evidence before the jury tending to show that the two wells afterwards dug by the plaintiff were each similarly affected. There was testimony to show that one of the wells was clearing up, or had cleared up.

The defendant company offered in evidence certain written agreements entered into by and between the defendant and J. B. Byars, the husband of plaintiff. One of the agreements was termed a lease, whereby J. B. Byars leased to the defendant the filling station and the lands upon which it was located, the monthly rental being fixed at a sum equal to 1 cent for each gallon of defendant's gasoline sold at the station. This agreement was executed in November, 1929. Under other instruments, executed by the defendant and the said J. B. Byars, the latter became the authorized dealer of defendant at said filling station, and defendant agreed to, and did, lease to said Byars two gasoline tanks and pumping equipment used in connection with said tanks. These tanks and pumping equipment were installed by the defendant.

At a later date-September 29, 1931-all of said written agreements were renewed.

It appears, that while the said J. B. Byars, in dealing with the defendant, assumed to act as the owner of the land and the filling station located thereon, nevertheless the filling station and the land were the property of Mrs. J. B. Byars, his wife. It also appears that Mrs. Byars, at the request of Mr. Byars, signed the name of the latter to all of said contracts.

In the "Equipment Rental Agreement," dated September 29, 1931, the said J. B. Byars, therein styled party of the second part, agreed: "Second party, for himself, his heirs, executors, administrators and assigns hereby agrees to indemnify and save harmless the first party (defendant) of and from any and all claims for liability for any and all loss, damage, injury or other casualty, person or property caused or occasioned by any leakage, fire or explosion of or from said equipment or the appliances connected or used therewith, or through any imperfection in the construction, installation or operation of the same, whether due to negligence of the first party or otherwise, and further agrees to pay any and all licenses, license fees, taxes and/or assessments levied or imposed during the term of this lease on any equipment of first party, furnished under this agreement, or upon the operation and maintenance thereof.

"Second party also for himself, his heirs, executors, administrators and assigns, does expressly waive, relinquish, exonerate, discharge and protect the first party from any and all liability for damages which may be suffered by him or others by reason of leakage, fire, explosion or other casualty occurring through any imperfection in said equipment or the appliances connected therewith or from any other cause whatsoever."

We have set out at length the above provisions of the contract because defendant has taken the position that, under said provisions, the plaintiff is precluded from recovering in this action, inasmuch as she and her husband operated said business, along with their son, as a joint adventure. However, the contract embracing this provision was not executed until after the injury to the land had occurred.

The orginal well, which it is alleged was polluted by the seepage of gasoline into it, was situated about 216 feet from the tanks. From the tanks down to this well there was a down grade of about 2 per cent. One of the new wells was dug within 50 feet of the tanks, while the third well was located some distance farther from the tanks.

The testimony further tended to show that there was a ditch behind the garage, running parallel with the highway, and flowed downward from the garage in a general direction towards the tenant houses. It started "right behind the garage." This ditch was about 2 feet in depth and came within about 20 feet of the first or original well.

There was testimony also tending to show that, for a period of five years, waste oil and gasoline had been thrown out of the back door of the garage into the ditch, and the back of the garage was something like...