Tex-Jersey Oil Corp. v. Beck

• Decision Date: 24 July 1957
• Docket Number: TEX-JERSEY,No. A-6009,A-6009
• Citation: 305 S.W.2d 162,157 Tex. 541,68 A.L.R.2d 1062
• Parties: , 68 A.L.R.2d 1062 OIL CORPORATION et al., Petitioners, v. Ernestine BECK, by Next Friend, et al., Respondents.
• Court: Texas Supreme Court

Page 162

305 S.W.2d 162

157 Tex. 541, 68 A.L.R.2d 1062

TEX-JERSEY OIL CORPORATION et al., Petitioners, v. Ernestine BECK, by Next Friend, et al., Respondents.

No. A-6009.

Supreme Court of Texas.

July 24, 1957.

Rehearing Denied Oct. 2, 1957.

Ramey, Calhoun, Brelsford & Hull,

Long, Strong, Jackson & Strong, Carthage, Dallas, for petitioners.

Ling, Strong, Jackson & Strong, Carthage, Smith & Smith, Tyler, for respondents.

CALVERT, Justice.

This is a suit for damages instituted by Ernestine Beck, minor, by next friend, Abraham Jones, for the death of her mother, Christine Beck, and by Paul M. Branch, Temporary Administrator of the Estates of Christine Beck, deceased, Lorenzo Beck, deceased, and Elizabeth Beck, deceased, for their conscious pain and suffering. Lorenzo Beck and Elizabeth Beck were also minor children of Christine Beck. The defendants, petitioner here, are Tex-Jersey Oil Corporation and Great Expectations Oil Company.

The petitioners jointly operated and maintained a tank battery, including two 500-barrel oil storage tanks surrounded by a fire wall, within the city limits of Kilgore, Texas. Christine Beck and her three minor children occupied a house which was within fifty feet of the oil storage tanks. On the afternoon of April 28, 1953, a bolt of lightning struck one of the oil storage tanks causing it to explode and throw burning oil over the fire wall and upon many residences in the near vicinity. The Beck dwelling was set ablaze, trapping and burning to death Christine Beck and her two minor children, Lorenzo and Elizabeth. The third child, Ernestine Beck, escaped from the fire unharmed. Respondents offered evidence that the bolt of lightning ignited vapors escaping from holes in the top of the tank and that the tank did not explode until the escaping vapors had been burning for a short period of time.

The jury found, in answer to fourteen special issues, that the storage of the oil in a tank which was not vapor proof was a proximate cause of the explosion and deaths in question; that the maintaining of a tank, containing crude oil, with holes in the top was negligence and a proximate cause of the explosion and the deaths; that the accident was not due to an act of God and was not an unavoidable accident; that $25,000 would reasonably compensate Ernestine Beck for the death of her mother; that $5,000 would reasonably compensate for the mental and physical pain suffered by Christine Beck from the time of her injury to the time of her death; and that $2,500, each, would reasonably compensate for the mental and physical pain suffered by Lorenzo and Elizabeth Beck from the time of the accident to the time of their deaths. Based upon these answers, the trial court rendered judgment against both defendants and awarded $25,000 to Ernestine Beck and $10,000 to Paul M. Branch, Temporary Administrator of the Estates of Christine Beck, Lorenzo Beck and Elizabeth Beck. After a hearing on petitioners' amended motions for new trial, the respondents filed a voluntary remittitur of $4,800, to be deducted from Ernestine Beck's recovery of $25,000, because the evidence established that the jury discussed and awarded that amount as the cost of a college education in assessing damages in favor of Ernestine Beck for the death of her mother. Upon filing of the remittitur, the trial court overruled the amended motions for new trial and the petitioners appealed. The Court of Civil Appeals affirmed. 292 S.W.2d 803.

Petitioners bring forward twelve points of error. To sustain any one of the last nine of the points would vitiate the entire judgment. To sustain any one of the first three of the points would vitiate only that part of the judgment which runs in favor of Ernestine Beck. We will first dispose of the points which, if sustained, would vitiate the entire judgment.

Point 12 asserts fundamental error in the failure of respondents to make the father of Christine Beck a party to the suit or to account for his absence as a party. The father of a deceased person is one of the beneficiaries under Article 4675, R.C.S. of Texas, 1925, the Wrongful Death Statute. There is no mention in the pleadings or the evidence of the existence or nonexistence of Christine Beck's father. The question was not raised by plea in abatement, special exception, or other pleading or motion in the trial court. In this condition the record does not present fundamental error which may be raised initially in this Court. St. Louis Southwestern Ry. Co. of Texas v. Anderson, Tex.Civ.App., 206 S.W. 696, 698, writ refused; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979. In the cases on which petitioners rely reversal was ordered on a record showing the existence of beneficiaries who were not joined as parties and whose absence as parties was not accounted for.

In answer to special issues Nos. 2, 3 and 4 the jury found that petitioners maintained a storage tank, containing crude oil, with open holes in the top, that the maintenance of such a storage tank containing crude oil was negligence, and that such negligence was a proximate cause of the explosion and the deaths of Christine Beck, Lorenzo Beck and Elizabeth Beck. Petitioners' points 8, 9, 10 and 11 present, in one form or another, the contention that there is in the record no evidence of probative value to support the jury's findings to the foregoing issues. Much of the evidence bearing on these issues in set out at length in the opinion of the Court of Civil Appeals. 292 S.W.2d 805-809. No good purpose would be served by repeating it in this opinion. We are satisfied that there is evidence of probative value supporting the jury's findings to special issues 2, 3 and 4, and accordingly overrule petitioners' points 8, 9, 10 and 11.

The storage tanks in question were within the city limits of the City of Kilgore. Kilgore has a city ordinance making it unlawful to use storage tanks which are not vapor proof. In response to special issue No. 1 the jury found that the act of petitioners in storing oil in a tank which was not vapor proof was a proximate cause of the explosion and the deaths of Christine Beck, Lorenzo Beck and Elizabeth Beck. Petitioners' point 7 asserts that liability may not be predicated on the answer to special issue No. 1 because the issue was fatally defective in that it was multifarious and commented on the weight of the evidence and because the ordinance in question is invalid. Inasmuch as we have held that petitioners' liability may be predicated on the jury's answer to special issues 2, 3 and 4 the defects, if any, in special issue No. 1 and the invalidity of the ordinance become immaterial. Point 7 is accordingly overruled.

By special issue 9 the jury was asked whether it found, from a preponderance of the evidence, that the accident in question was not due to an act of God. In connection with the issue the jury was instructed that by the term 'Act of God' was meant 'that when the injuries are due directly and exclusively to natural causes, without human intervention, and no amount of foresight or care which could have been reasonably required of the defendants could have prevented the injuries, they should be regarded as an act of God.' Petitioners' point 6 asserts that the definition given imposed on petitioners a greater burden than the law required of them. The issue imposed no burden on petitioners. It placed the burden on respondents to prove that the accident was not due to an act of God. The point is overruled.

In point 5 petitioners complain of the failure of the trial court to include the element of 'new and independent cause' in its definition of 'proximate cause'. The failure in the respect mentioned was not error unless there is evidence in the record raising the issue of new and independent cause. Young v. Massey, 128 Tex. 638, 101 S.W.2d 809.

There is no evidence in the record of any independent act, omission, object or force, other than the bolt of lightning, which could have been a new and independent cause of the explosion. Moreover, under the record before us the bolt of lightning could not have been a new and independent cause thereof. Respondents' theory of the explosion is that the bolt of lightning ignited vapors which petitioners negligently permitted to escape from the tank and that the fire caused the explosion. If that theory be correct then the bolt of lightning was a concurring cause and not a new and independent cause of the explosion. Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294, writ refused; Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447; Walker, Inc., v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506, 509; Luther Transfer & Storage, Inc., v. Walton, Tex.Sup., 296 S.W.2d 750. Petitioners' theory of the explosion was that it was caused by the bolt of lightning striking the storage tank and not by its igniting vapors which were escaping from the tank. If that theory be correct the bolt of lightning was the sole proximate cause of the explosion, having no connection whatever with petitioners' negligence. That theory was submitted to the jury, in effect, by special issue No. 9 and was found against petitioners. There is no contention and no evidence to support a holding that the facts give rise to a reasonable inference that the explosion was proximately caused by any other means or in any other manner. Petitioners' point 5 is accordingly overruled.

By their point 4 petitioners seek a reversal of the judgment because of improper argument of respondents' counsel. To evaluate the argument it must be considered in its proper factual background. The storage tank had a manhole about two feet in diameter at its top. There was a rim around the edge of the manhole with some thirty or thirty-five holes in it for bolting on a lid or plate which, in turn, had holes for bolting and also had a hole in its top two and one-half inches in...