State ex rel. Industrial Commission v. Standard Oil Co. of Cal., 1

• Decision Date: 03 June 1966
• Docket Number: No. 1,CA-CIV,1
• Citation: 414 P.2d 992,3 Ariz.App. 389
• Parties: STATE of Arizona ex rel. the INDUSTRIAL COMMISSION of Arizona, Appellant, v. STANDARD OIL COMPANY OF CALIFORNIA, Mesa Distributor, and Robert Ream Evans and Jane Doe Evans, dba Standard Oil Company of California, Mesa Distributor, Appellees. 92.
• Court: Arizona Court of Appeals

Page 992

414 P.2d 992

3 Ariz.App. 389

STATE of Arizona ex rel. the INDUSTRIAL COMMISSION of Arizona, Appellant, v. STANDARD OIL COMPANY OF CALIFORNIA, Mesa Distributor, and Robert Ream Evans and Jane Doe Evans, dba Standard Oil Company of California, Mesa Distributor, Appellees.

No. 1 CA-CIV 92.

Court of Appeals of Arizona.

June 3, 1966.

Rehearing Denied July 18, 1966.

Richard J. Daniels, Former Chief Counsel, by Robert K. Park, Present Chief Counsel, for appellant Industrial Commission of Arizona.

Langerman, Begam & Lewis, by Mark I. Harrison and Samuel Langerman, Phoenix, for appellant State of Arizona.

Snell & Wilmer, by J. J. Bouma, Phoenix, for appellees.

CAMERON, Judge.

This appeal arises out of a wrongful death action commenced by the Industrial Commission of Arizona as the assignee of Reba A. Glendenning, surviving widow of William Harold Glendenning. Glendenning died as a result of injuries sustained in an explosion of a fuel tank owned by the defendant, Robert Ream Evans. The trial court granted defendant's motion for summary judgment and the plaintiff, Industrial Commission of Arizona, brings this appeal.

Viewing the record in the light most favorable to the plaintiff, Arizona Coffee Shops v. Phoenix Downtown Parking Association, 95 Ariz. 98, 387 P.2d 801 (1963), and giving the plaintiff the benefit of all favorable inferences that may be drawn from the evidence, Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963), the following facts are apparent.

Defendant, Robert Ream Evans, was the Mesa, Arizona, distributor for the Standard Oil Company of California. As a part of his operation, defendant Evans owned numerous fuel storage tanks which he would loan to various customers. The tank in question with the capacity of some 560 gallons, was located on the property of ABC Materials in Tempe, Arizona. The tank was used to store diesel fuel.

Several months prior to 18 June, 1963, this tank had been provided or loaned by the defendant Evans. On 18 June, 1963, the building near which the tank was located was severely damaged by fire. The heat from the fire damaged the tank and after 18 June and prior to 3 July, 1963, the tank manifested an impressive variety of defects some of which were a result of the fire though most were not. The tank was charred, badly rusted, covered with deep pitted spots, and well patched in various parts of the tank. The tank ends bulged, and testimony indicates that it disclosed a split near the top. It was estimated to be from 15 to 20 years old. Regarding the tank, Dr. Merle C. Nutt, metallurgist, stated in his report:

'2. The tank was kept in service entirely too long by an attempt to patch it by welding to keep it from leaking, however, as may be seen in the unretouched photographs in this report, the entire tank was pocked with deep pit corrosion so that it could not possibly have been serviceable under such condition regardless of how many times it was weld-patched nor how well the welding jobs were accomplished.'

On 3 July, 1963, there was a telephone conversation between Hal Adams and defendant Evans concerning a delivery of diesel fuel to the tank. There was discussion between the two parties about the leak, and how the tank could be repaired. The testimony of Evans indicated that he told Hal Adams the tank should not be welded unless filled with diesel fuel. There is no evidence that deceased was aware of this conversation. The testimony of Hal Adams indicated that he thought Evans was going to weld the tank. Robert William Lewis, an employee of Evans, delivered fuel to the tank and when the fuel level reached the area of the leak, the fuel let out so fast that it was impossible to completely fill said tank.

At the time the fuel was being pumped into the tank, the deceased, William Glendenning, an employee of Hal Adams, was present, and a dicussion was held concerning repair of the leak. Attempt was made with some solder and a ballpeen hammer to hammer in the area of the leak, and after putting more fuel into the tank, and the tank continuing to leak, the truck driver stopped filling the tank and left. The tank then held some 360 gallons of diesel fuel.

Although Glendenning had commented to the effect that he wouldn't 'touch the tank with a ten-foot pole', Glendenning did attempt to spot weld the hole in the tank with the result that an explosion occurred and the defendant was killed almost instantly.

Glendenning's widow applied to the Industrial Commission of Arizona for workmen's compensation benefits which were paid and the Industrial Commission of Arizona brings this suit under the statute (23--1023 A.R.S.), as assignee to the rights of the widow of the deceased.

Upon the evidence presented herein, this was a bailment for the mutual benefit of both the defendant and ABC Materials. ABC Materials benefited by having a tank upon its premises for the storage of diesel fuel, and the defendant benefited from being able to make a bulk delivery and increase in the sale of his product to ABC Materials. As such, the defendant was under the duty to use reasonable care to see that the tank was reasonably safe for the use in the manner and for the purposes reasonably to be anticipated by the defendant. Roy v. Friedman Equipment Company, 147 Conn. 121, 157 A.2d 599 (1960). There is nothing in the instant case to indicate that the tank in question though old and pitted could not have been reasonably used for the storage of diesel fuel. That the tank's condition was subsequently altered while in the possession of the ABC Materials is not the responsibility of the defendant, for generally the bailor of a chattel is not liable to the bailee or to a third party for defects arising subsequent to the delivery of the chattel to the bailee. Dickson v. Southern California Edison Company, 136 Cal.App.2d 85, 288 P.2d 310 (1955). The defendant then, in the instant case, was not an insurer of the tank and had no duty to repair the tank after the damage sustained by said chattel after the fire.

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