Plains Transport of Kansas, Inc. v. King
| Decision Date | 06 May 1978 |
| Docket Number | No. 48582,48582 |
| Citation | 578 P.2d 1095,224 Kan. 17 |
| Parties | PLAINS TRANSPORT OF KANSAS, INC., Appellant, v. Walter L. KING, d/b/a King Brothers Oil Company, and Gary L. King, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The purpose of an expert witness is to aid the jury in the interpretation of technical facts or to assist in understanding the material in evidence. The witness must have skill or experience in the business or profession to which the subject relates. He must be qualified to impart knowledge within the scope of his special skill and experience that is otherwise unavailable to the jury.
2. While it is not permissible for an expert to pass upon the credibility of the witnesses or to give an opinion contrary to the undisputed facts of the case, he can assist the jury in arriving at a reasonable factual conclusion from the evidence.
3. As many inferences may be drawn from a fact, or state of facts, as can be justified, so long as each has a factual foundation, without violating the rule against inference based on inference.
4. In an action for the recovery of damages to a tractor and tank-trailer which were destroyed by fire, it is held : The trial court did not err in (1) allowing the expert witnesses to testify as to their opinions, (2) giving jury instructions, and (3) refusing to direct a verdict for plaintiff.
Otto J. Koerner and Randall H. Elam, of Koerner & Elam, Wichita, argued the cause and were on the brief for appellant.
Robert C. Martindell, of Martindell, Carey, Hunter & Dunn, Hutchinson, argued the cause and was on the brief for appellees.
This is an appeal from a jury verdict denying recovery of damages to a tractor and tank-trailer which were destroyed by fire while gasoline was being transferred from the tank-trailer to a bulk storage tank.
Plaintiff-appellant, Plains Transport of Kansas, Inc. (Plains), was the owner-lessor of the tractor and tank-trailer. Groendyke Transport Company, Inc. (Groendyke), was the lessee-operator at the time of the accident. Walter L. King, d/b/a King Brothers Oil Company (King Oil), was the owner of the bulk storage tank. Gary L. King is Walter L. King's son and an employee of King Oil. King Oil and Gary King are the defendants-appellees herein.
On May 23, 1973, James C. Ward, an employee of Groendyke, arrived at defendants' service station for the purpose of delivering an 8,400-gallon load of gasoline. This was Ward's first delivery to King Oil, although Groendyke had been delivering gasoline to the station for several years. When Ward arrived Walter King instructed him to fill the underground tanks at the front of the station. He was then instructed to unload the balance, approximately 4,200 gallons, into a large overhead bulk storage tank located at the rear of the station.
According to Ward, Gary King and Walter King told him the overhead tank was divided into two equal compartments with a capacity of 4,500 gallons each. They further told him the gasoline in the tank-trailer should be pumped into the west compartment, which was completely empty. The tank-trailer was divided into four compartments of unequal capacity, totalling 8,400 gallons. After filling the underground tank, Ward calculated he had 3,600 gallons remaining in the number two compartment, which was not enough to fill the west compartment of the overhead tank.
Ward further stated that Walter King gave him the instructions for filing the overhead tank while Gary King unlocked its valves and adjusted them so the west compartment could be filled. Ward then connected the number two compartment to the overhead tank, turned one of its valves, and proceeded to unload the gasoline. After he started the unloading, he checked for leaks and saw none. Approximately twenty minutes later he climbed on top of the tank-trailer and observed that approximately one hundred gallons of gasoline remained in the compartment. As he started to climb down to the ground he heard the engine speed up and saw sputtering and droplets come from the vent in the overhead tank. When he reached the ground he closed the valve to the number two compartment and pulled the emergency valve to close all the other compartments. Ward then climbed into the tractor cab to shut off the engine. A flash occurred immediately after he shut off the engine, and as he jumped out of the cab it was engulfed in flames.
The fire burned intensely for more than two hours. During that period the fire burned around the overhead tank and under the tractor and tank-trailer. At some point the fire burned through the hose connecting the tank and the tank-trailer and gasoline flowed from the overhead tank and burned, as it had no internal safety check valve. Heat from the fire caused the legs on the overhead tank to buckle and the tank fell, rupturing and causing gasoline to escape from the tank. By the time the fire was extinguished, five hours after it started, the tractor and tank-trailer were completely destroyed.
Plaintiff sued King Oil on the theory that the Kings told Ward the large overhead tank was completely empty before he began filling it when in fact it contained gasoline; that the overhead tank overflowed and gas ran onto the ground where it was ignited; that the legs on the overhead tank were not designed in conformity with the state fire marshal's regulations to withstand fire for two hours and the legs buckled under the heat, allowing the tank to fall; that when the tank fell it broke the outside pipes loose and gas flowed from the tank because it did not have an internal check valve as required by the state fire marshal's regulations; and that because of all these facts plaintiff's tractor and tank-trailer were destroyed.
Plaintiff produced testimony from numerous sources to support its theory. Jewell Billings, a neighbor, was deposed prior to trial and her deposition was admitted in evidence. Her testimony indicated that she lived in a house located between seventy-five and one hundred feet east of the overhead tank. On the day of the fire she observed Ward unloading his tank-trailer. She looked out her window when she heard a tractor motor speed up and observed a fountain of gasoline shooting up nearly two feet from the top of the vent. The gas was running down the side of the overhead tank onto the ground and flowing toward the tractor and tank-trailer. At the same time she observed the driver run to the front of the tractor cab and stop the engine. This is when the explosion occurred. She watched the fire trucks arrive and noticed that the large overhead tank fell about thirty to forty-five minutes after the fire started. When this happened the unloading pipe broke and fuel ran from the tank. Before this happened she had noticed that the tractor and tank-trailer were on fire and some of the compartments on the trailer had already melted.
Plaintiff used Kenneth Razak, a consulting engineer, as an expert to reconstruct the cause of the fire. He went to the scene of the fire six days after it occurred, made detailed observations, took photographs and preserved evidence. Based on his studies he concluded each compartment of the overhead tank held 4,150 gallons of liquid, and each compartment was sealed from the other. The position of the valves indicated the east compartment to be closed and the west compartment to be open. Considering these facts, along with the statements of Ward and Mrs. Billings, he concluded that the west compartment of the tank must have had gasoline in it when Ward started unloading gasoline from the tank-trailer; that it would not hold all the gasoline and therefore overflowed; that the overflowing gas ran onto the ground and under the tractor and tank-trailer; and that a spark from some source ignited the vapors, causing the fire. He also stated it was impossible to determine whether the gas could have leaked from another source such as the unloading hoses because they were destroyed by the fire.
Defendants produced evidence countering plaintiff's theory. Walter King admitted that he and his son had given Ward instructions on how to fill the overhead tank, but denied ever stating the capacity of the tank. He also denied telling Ward to fill only the west compartment of the tank. Gary King corroborated his father's statements.
Norman Byers was defendants' key witness. His testimony was contrary to the conclusions drawn by Razak. Byers heard testimony of the witnesses, read depositions given by Ward and Razak, read Razak's report, examined photographs taken of the scene of the fire, and visited the scene. From these sources Byers concluded the overhead tank had not overflowed, but that the phenomenon (sputtering) observed by Ward was venting which occurred when the tank was approximately 390 gallons short of being full. Based on the information he possessed he theorized the gasoline which started the fire came from some other source, but he could not pinpoint the location because any evidence of the location was destroyed in the fire.
The jury returned a defendants' verdict.
The three issues involved in this appeal are the use of expert witnesses, the jury instructions, and whether plaintiff was entitled to a directed verdict.
Plaintiff argues it was improper for the trial court to allow Fire Chief Delmar Hill and Norman Byers to give opinions as experts. Plaintiff's complaints against Hill are: (1) He was not qualified as an expert to give an opinion as to the cause of the fire, and (2) his opinion was contrary to the undisputed evidence. Byers' testimony is challenged by plaintiff on four grounds: (1) He was not qualified as an expert to give an opinion as to the cause of the fire, (2) his opinion was not based on undisputed evidence, (3) his opinion was based on speculation, and (4) his opinion constituted an inference upon an inference.
The purpose of an expert witness is to aid the jury in the interpretation of...
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