Socony Mobil Co., Inc. v. Southwestern Bell Tel. Co.

• Decision Date: 31 December 1974
• Docket Number: No. 921,921
• Citation: 518 S.W.2d 257
• Parties: SOCONY MOBIL COMPANY, INC., Appellant, v. SOUTHWESTERN BELL TELEPHONE CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 257

518 S.W.2d 257

SOCONY MOBIL COMPANY, INC., Appellant, v. SOUTHWESTERN BELL TELEPHONE CO. et al., Appellees.

No. 921.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 31, 1974.

Maurice Amidei, Dallas, for appellant.

Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, Adams, Graham, Lewis, Jenkins, Jones & Graham, Harlingen, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a venue case. Southwestern Bell Telephone Company brought suit on June 8, 1973, in the District Court of Hidalgo County, Texas, against C. E. Vanover, Marlin Burt, Al Bouch, Socony Mobil Company, Inc., Triangle Facilities, Inc., Continental Oil Company and Gulf Oil Corporation, for damages allegedly sustained as the result of gasoline leaking from storage tanks, pumps or lines connecting the storage tanks and pumps at three service stations in McAllen, Texas, to plaintiff's underground cables contained within an underground conduit which was beneath a street in McAllen. Socony Mobil Company, Inc. filed its plea of privilege to be sued in Dallas County, Texas, where it allegedly had its domicile and principal place of business in Texas. Plaintiff controverted the plea, and sought to maintain venue in Hidalgo County under the provisions of Subdivisions 4, 9, 9a, and 23, Article 1995, Vernon's Ann.Civ.St. Following a non-jury hearing, the plea of privilege was overruled. Mobil Oil Corporation, hereinafter called 'Mobil' and the successor to Socony Mobil Company, Inc., defendant, has appealed .

Plaintiff adopted and made its original petition part of its controverting plea. Plaintiff alleged in the petition: 1) the defendants Vanover and Burt were residents of Hidalgo County, Texas; 2) the remaining named defendants were non-residents of Hidalgo County; 3) plaintiff owns an easement within the City of McAllen in which is located a set of cables within an underground conduit that runs parallel to N. 10th Street in McAllen; 4) three service stations are located at the intersection of N. 10th and Pecan Streets, one of which is a Conoco station, owned by Triangle Facilities, Inc., leased to Continental Oil Company (Conoco) and subleased to and operated by C. E. Vanover, a servant of Conoco; one of which is a Gulf station, owned by Gulf Oil Corporation (Gulf) and leased to and operated by Marlin Burt, a servant of Gulf; and one of which is a Mobil station owned by Mobil and leased to and operated by Al Bouch, a servant of Mobil.

It was further alleged that in June, 1970, in August, 1971 and in June, 1972, gasoline was discovered in the conduit near the intersection of N. 10th and Pecan Streets; that the gasoline entered the conduit from the storage tanks, pumps and lines of the three service stations and damaged the cables in the conduit; that the damages were proximately caused by certain omissions by the defendant, and by the unreasonable and negligent use of the service station properties by the defendants.

Defendant contends that plaintiff failed: 1) to plead and prove a joint cause of action against any defendant who was a resident of Hidalgo County; 2) failed to plead and prove a cause of action so intimately connected with Mobil that the two causes of action may be joined so as to prevent a multiplicity of suits; 3) failed to prove that any defendant used their property in such a manner as to be guilty of negligence; 4) failed to prove a cause of action based on trespass by defendant, or anyone else, which arose in Hidalgo County; and 5) failed to prove all of the elements of a cause of action against defendant which arose in Hidalgo County.

The locations of the three service stations, the conduit that contained the telephone cables, manhole 44, and the intersection itself, are illustrated by a drawing, which, however is not drawn to scale, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

N. 10th Street is fifty feet wide. The width of Pecan Street was not established. The conduit is located in N. 10th Street, inside the east curb. Manhole 44 is located in N. 10th Street at the northwest corner of the intersection. There is also another manhole (43), located at the intersection of N. 10th Street and Nyssa Street, two blocks south of the above illustrated intersection. The telephone cables between these two manholes were the ones that were damaged by gasoline to the extent that they had to be replaced, and it was the damage to the cables between manholes 44 and 43 that gave rise to this suit. The bottom of manhole 44 is seven feet below ground level. The telephone cables are located inside the underground conduit. Manholes are required at certain intervals so that workmen may perform the necessary tasks in maintaining, splicing and repairing the cables. The conduit, between manholes is not on a level grade, but is so constructed that there is a high point between two manholes.

In June, 1970, Mr. Kirkpatrick, an engineer for plaintiff, inspected the conduit and cables contained therein at manhole 44. He found cable 9 to be in a deteriorated condition and the section thereof (between manholes 44 and 43) was replaced. At that time, he noticed the odor of gasoline in the manhole.

Mr. Cooksey, a repair foreman for plaintiff, testified that sometime after February 1, 1971 but prior to August of that year, work was required at the intersection of N. 10th and Pecan Streets. When the work crew opened manhole 44, it was discovered that there was such an accumulation of gasoline in the manhole that work therein could not be performed in safety. Pumping operations were commenced in either July or August, 1971. One month was required to pump the gasoline out. The quantity of gasoline pumped out was not established. It was then learned that cable 7 was damaged and that the section thereof from manhole 43 to manhole 44 had to be replaced . Later, sometime between August and December, 1971, plaintiff experienced problems caused by gasoline again getting into the conduit in quantities that severely damaged the cables. Pumping operations at manhole 44 were carried on by plaintiff's repair crew regularly until the end of 1971.

In the spring of 1972, plaintiff drilled three holes in the right of way of N. 10th Street adjacent to the conduit and as close thereto as possible. The holes were immediately west of the Conoco station. Gasoline was found in the two most northerly holes. Mr. Cooksey told Mr. Parkhill, a representative of Conoco, that gasoline had been found in two of the holes. Mr. Cooksey then pulled the penel off of the south gasoline pump at the Conoco station and found the pump to be 'full of gas' and that 'the well at the bottom of the pump had gas in it'. The next morning, a crew was working on the lines at the Conoco station. Mr. Cooksey described the work, thusly:

'They had a fiberglass line from the tank to the pump, and between the pump there was a rubber hose that had deteriorated, and they replaced it'.

When asked if the construction crew did any underground work, he replied:

'Not that I know of'.

Mr. Cooksey further testified that the gasoline caused so much damage that cables 7 and 11 between manholes 44 and 43 had to be replaced.

Mr. Vanover, a defendant, testified that he had operated the Conoco station under a franchise agreement with Continental Oil Company since August 1, 1969. He said that he did not know about any gasoline underground anywhere in the intersection area of N. 10th and Pecan Streets until the holes were drilled. He did nothing to determine whether or not gasoline was leaking at his station and made no underground inspection of the premises because the 'gas that is in the ground there is owned solely, at that time by the company.' He did not observe any hoses that were leaking, nor did he know of any gasoline down in one of his pumps. With respect to what he saw concerning the repairs of any leaks, he said:

'The Conoco representative engineers and wholesale people came in there and tore up a little bit of the driveway and replaced a small section of fiberglass, and that's it'.

The fiberglass referred to apparently was a line about two inches in diameter that carried gasoline from the storage tanks to the pumps. He never did see a leak in the line and never saw any gas in the well of his pumps. He never measured the gasoline in the storage tanks and did not have to account to anyone for any gasoline inventory. He said that he paid only for the gas that went through the meters on the pumps. He further testified:

'I have no control over putting gas in the ground, checking the gas in the ground, just have no control over it whatsoever. This gas does not belong to the dealer; it belongs to the company, or the man that runs the wholesale place'.

He was positive that the never, at any time, saw any gasoline in the area of the intersection, and that 'all I know is what they told me'. He identified 'they' as 'those people that were coming there and pumping water and gasoline out of the hole, and the people working on those manholes'. Mr. Vanover further testified that 'the only inspection I could possibly do would be just visual', and that he looked over the premises all of the time. He stated that his water and air hoses would be replaced 'pretty often' because they wore out, and 'I just know there wasn't gas standing on top of the hose'. He said that he was not present when the base plate (of his pump) was taken off.

Plaintiff also offered into evidence Mobil's answers to certain interrogatories. According to those answers: a 4,000 gallon gasoline storage tank, and a 6,000 gallon gasoline storage tank, together with the necessary connecting lines, were installed at the Mobil station in 1960, and a 2,000 gallon storage tank and connecting lines was installed in 1964; all tanks were underground; a leak in the lines was discovered about February 1, 1970; approximately 2,000 gallons of gasoline was lost due to...