Phillips Petroleum Co. v. Hooper, 11894.

• Decision Date: 09 January 1948
• Docket Number: No. 11894.,11894.
• Citation: 164 F.2d 743
• Parties: PHILLIPS PETROLEUM CO. v. HOOPER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

164 F.2d 743 (1947)

PHILLIPS PETROLEUM CO. v. HOOPER et al.

No. 11894.

Circuit Court of Appeals, Fifth Circuit.

December 12, 1947.

Rehearing Denied January 9, 1948.

E. H. Foster, R. S. Sutton, and C. J. Roberts, all of Amarillo, Tex., and Rayburn L. Foster, of Bartlesville, Okl., for appellant.

Emory Cantey and J. A. Gooch, both of Fort Worth, Tex., R. A. Stone, of Amarillo, Tex., and Russell M. Baker, of Dallas, Tex., for appellees.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

This was an action by Marion H. Hooper and Associated Employers Lloyds against Phillips Petroleum Company to recover damages for personal injuries suffered by Hooper as a result of the alleged negligence of defendant's agent, servant or employee, in delivering gasoline to a truck and attached trailer-tank operated by the plaintiff Hooper.

Associated Employers Lloyds carried Workmen's Compensation insurance for the Public Construction Company of Texas, which employed Hooper at the time of his injury, and joined as a plaintiff in this action to assert its right of subrogation under the Workmen's Compensation Law of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., for the amount it paid upon the claim against it by Hooper.

The plaintiff Hooper contends that defendant's agent, one M. C. Davis, was negligent in not extinguishing the flame of a stove on defendant's premises before delivering the gasoline, and that the lighted stove had precipitated the explosion which injured Hooper; that the defendant had thereby violated its duty of reasonable care which it owed Hooper as a business-invitee on defendant's premises.

The defendant answered (1) that plaintiff was guilty of contributory negligence, and that such negligence was the proximate cause of his injuries, and (2) that defendant owed plaintiff no duty for the reason that plaintiff had equal or greater knowledge than defendant of the hazards and risks involved in the operation which caused his injury.

The evidence shows that the plaintiff was injured by an explosion at defenant's station in Panhandle, Texas, which occurred when gas fumes from the trailer-tank were ignited by the flame of a nearby stove on the premises of defendant. Hooper drove the truck to the station of defendant for the purpose of having one hundred and fifty gallons of gasoline transferred into the attached asphalt distributing tank. The truck and trailer-tank were used in paving and construction work, in which Hooper was then employed. The tank was loaded with hot asphalt, and Hooper requested the defendant's agent Davis, to pour the gasoline on top of the asphalt in the tank, for the purpose of thinning the mixture. While delivering the gasoline, Davis left a gas stove burning in close proximity to where the gasoline was being transferred into the tank, and the gasoline ignited, as a result of which Hooper...