T-L Drilling Co. v. Northern Propane Gas Co.

• Decision Date: 27 November 1974
• Docket Number: T-L,No. 900,900
• Citation: 516 S.W.2d 710
• Parties: DRILLING COMPANY, Appellant, v. NORTHERN PROPANE GAS COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 710

516 S.W.2d 710

T-L DRILLING COMPANY, Appellant, v. NORTHERN PROPANE GAS COMPANY, Appellee.

No. 900.

Court of Civil Appeals of Texas,

Corpus Christi.

Nov. 27, 1974.

Joseph P. Kelly, Guittard & Henderson, Victoria, Samuel J. Ferro, J., Spafford, Gay & Whitman, Dallas, for appellant.

R. D. Cullen, Victoria, for appellee.

OPINION

NYE, Chief Justice.

This is a damage suit brought by T-L Drilling Company against Northern Propane Gas Company caused by an explosion of a propane gas tank which had caught fire and damaged some drilling equipment. The trial was to a jury. Before the jury retired, the court upon proper motion instructed a verdict in favor of the defendant gas company. Whereupon the plaintiff drilling company has perfected its appeal to this Court.

The facts are virtually undisputed. The drilling company was engaged in drilling oil wells for various oil companies. It owned the drilling rig located at the site known as Rosenquest, Number 1, north of Victoria, Texas. The gas company was in the business of selling and delivering propane gas to different drilling sites among which was the one owned by the drilling company.

The drilling company's rig, commonly referred to as a 'utility unit', was approximately forty-two (42) feet by ten (10) feet in size. The floor of the rig was made of three-eighths (3/8) inch steel plate set on twin I-beams. The walls, made of three-eighths (3/8) inch steel, were welded to the floor and were airtight except for an opening approximately eight inches between the top of the wall and the roof. The unit was divided into four rooms. The electric control panel, breaker switches and the generators were located at the front end. The next room was a locker room. In this room, there was a shower stall, electric washer and dryer and a gas hot water heater. The next room contained spare parts and tools. The back end of the unit was open. This area contained two fifteen (15) horsepower water pumps, a twenty-five (25) horsepower compressor and a one thousand (1,000) gallon propane gas tank. The one thousand gallon tank was mounted on its own skid, which was in turn bolted to the utility unit. There was three or four inches of space between the bottom of the tank and the floor plate of the main unit. Mr. W. P. Larkin was the supervisor in charge of the drilling company's unit and was in charge on June 20, 1972, the date of the explosion. One of Mr. Larkin's duties was seeing that the unit was kept in proper working order.

On the morning of June 20, 1972, around 9:00 o'clock, the gas company's truck arrived at the drilling company's site with a load of propane. Mr. Jack Gaylord was the gas company's employee, employed to deliver propane to various rigs. Larkin requested that Gaylord fill up the one thousand gallon tank on the utility unit while he was there and put the balance of his load in the drilling company's six thousand (6,000) gallon tank. Larkin mentioned to Gaylord that the capacity gauge on the one thousand gallon tank was not operating. The gas company had filled the drilling company's one thousand gallon tank on several occasions prior to June 20, 1972, and had serviced the drilling company generally since 1963. Gaylord began filling the one thousand gallon tank around 9:00 o'clock that morning. At that time, the tank was already approximately half full according to Larkin. Larkin later noticed that Gaylord was draining some of the propane off because Gaylord had overfilled it. Larkin also noticed that the delivery gauge on the gas company's truck registered four hundred twenty (420) galons after filling the one thousand gallon tank. This meant that the total amount of propane placed in the one thousand gallon tank was approximately nine hundred twenty (920) gallons. Gaylord put the balance of his load in the large six thousand (6,000) gallon tank and left the drill site around 10:00 o'clock a.m. Approximately three hours later at 1:00 o'clock p.m., Larkin heard an explosion. He looked out his trailer door and saw that the whole open end of the utility unit was on fire. The one thousand gallon tank was located in this area. Approximately seven or eight minutes later, the one thousand gallon tank exploded, adding to the extensive damages to the unit alleged to be $37,814.86 .

The sole question before us is whether the trial court erred in instructing a verdict for the defendant gas company. Specifically, the drilling company's two points of error are directed to the trial court's instruction of a verdict while the drilling company contends that there was sufficient evidence which would require the trial court to submit special issues to the jury on the theories of negligence and proximate cause and on the doctrine of res ipsa loquitur.

Since this is an instructed verdict case, the court must review the evidence in its most favorable light in support of the drilling company's position. Anderson v. Moore, 448 S.W.2d 105 (Tex.Sup.1969); Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.). A proper determination of these law questions must be based on an acceptance of the evidence and the inferences therefrom most favorable to the plaintiffs' case, discarding contrary evidence and inferences. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

In order for a plaintiff to recover for damages claimed to have been caused by the tortious conduct of a defendant, the plaintiff is only required to prove that an accident probably resulted from the negligence of the defendant. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943). Both negligence and proximate cause may be established and an issue of fact may be raised by circumstantial evidence. J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698 (1940); Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.1919). If the gas company owed a duty to the drilling company and if there is any evidence of a breach of that duty which proximately caused the resulting damages, then the gas company was not entitled to an instructed verdict.

Appellant drilling company's two points of error will be discussed conjunctively since the company is complaining that there was ample evidence of negligence on the part of the gas company and that there was ample evidence that such negligence was the proximate cause of the explosion and fire. It is the drilling company's theory that the cause of the fire or explosion was that excessive propane gas was put into the tank, causing it to build up a great amount of pressure which was too much for the safety relief valve on the tank to properly handle, thus permitting gas to escape and ignite, causing the resulting fire and explosion. The only actual witness to the explosion and fire was Larkin.

Larkin testified that on the morning of June 20, 1972, somewhere around 9:00 o'clock, the gas company's truck arrived with a load of propane. He requested Gaylord, the gas company's employee, to fill the one thousand gallon tank first and then the six thousand gallon tank. He also told Gaylord that the capacity gauge was not working on the one thousand gallon tank. The one thousand gallon tank was approximately half full to begin with. Larkin did not watch Gaylord continuously, but stayed in the general vicinity. When Larkin returned, Gaylord was draining off some of the propane. Gaylord admitted to Larkin that he had filled the tank too full and had to drain some off. Larkin testified that Gaylord did not drain off very much propane gas. There was evidence that the tank contained an excess of between 40 and 80 gallons of propane when Gaylord finished filling it. The drilling company's expert witness, Frank Weaver, testified that for safety reasons these tanks should not be filled beyond 84 to 88 per cent.

In response to a question of why it was a matter of safety, weaver testified as follows:

'Q Will you explain that please?

A Yes. You are considering this your safety factor. You are allowing that extra volume to take up the expansion of the liquid. I said we could get the tank completely full and it would be all right. This is assuming we are not going to increase the temperature. If it is a cold night and the temperature decreases you are all right.

Q But if the temperature increases are you still then all right?

A No, You are then in trouble.

Q What do you mean by 'in trouble?'

A Then you can lose propane out, or depending on how fast the liquid is expanding, You can rupture the vessel.

Q Or ignite it if it comes in contact with an ignition point after it left the tank?

'A Oh, yes. After it left the tank.' (Emphasis supplied.)

Larkin also testified that when he saw Gayord drain the liquid out of the tank, he saw some of this liquid fall to the back side of the tank before it turned into vapor. Larkin stated this was the first time he had seen anyone drain a propane tank. The record discloses that the temperature on June 20, 1972, rose from 75 to 80 degrees at the time Gaylord filled the tank to 100 degrees or more at the time of the explosion. The evidence also showed that there was very little wind as it was 'very still' that day. Larkin also testified that there was nothing around the utility unit that was combustible that he knew of, other than the propane gas in the tank.

Frank Weaver, the expert witness, testified that if the tank was filled beyond 88 per...