Tex-Jersey Oil Corporation v. Beck

• Decision Date: 28 June 1956
• Docket Number: No. 6882,TEX-JERSEY,6882
• Citation: 292 S.W.2d 803
• Parties: OIL CORPORATION et al., Appellants, v. Ernestine BECK, by Next Friend, et al., Appellees.
• Court: Texas Court of Appeals

Page 803

292 S.W.2d 803

TEX-JERSEY OIL CORPORATION et al., Appellants, v. Ernestine BECK, by Next Friend, et al., Appellees.

No. 6882.

Court of Civil Appeals of Texas, Texarkana.

June 28, 1956.

Rehearing Denied July 26, 1956.

Ramey, Calhoun, Brelsford & Hull, Tyler, Leachman, Gardere, Akin & Porter, Henry D. Akin, Dallas, for appellants.

Long, Strong, Jackson & Strong, Carthage, Smith & Smith, Tyler, for appellees.

FANNING, Justice.

This is a suit for damages for the death of Christine Beck and for pain and suffering of Christine Beck and her two minor children, Lorenzo Beck and Elizabeth Beck. Suit was brought under the survival and death statutes of Texas by Paul M. Branch, temporary administrator of the estates of Christine Beck, Lorenzo Beck and Elizabeth Beck, deceased, Ernestine Beck, a minor, by next friend, Abraham Jones, and by other parties named in plaintiffs' petition. Defendants in the suit were Tex-Jersey Oil Corporation, hereinafter referred to as Tex-Jersey, and Great Expectations Oil Company, hereinafter referred to as Great Expectations.

Defendants owned operating interests in and (with other co-owners) maintained and operated a tank battery, including two 500-barrel oil storage tanks in the City of Kilgore, Texas. On April 28, 1953, lightning struck, igniting a fire causing one of said tanks to explode, causing burning oil to spread igniting and burning a house located about 50 feet from such tank in which house Christine Beck and her three minor children lived, and Christine Beck and two of her minor children, Lorenzo Beck and Elizabeth Beck, were burned to death in such house, but one child, Ernestine Beck, escaped unharmed from the house.

In response to special issues submitted, the jury trying the case found in essence as follows: (1) That the act of defendants in storing crude oil in the tank which was not vapor proof at the time and place it was so stored on the occasion in question was a proximate cause of the explosion and the deaths of Christine Beck, Lorenzo Beck and Elizabeth Beck; (2) that defendants were maintaining a storage tank with open holes in the top, containing crude oil, at the time and place in question; (3) that such act of defendants was negligence, and (4) was a proximate cause of the explosion and the deaths of Christine Beck, Lorenzo Beck and Elizabeth Beck; (5) that defendants' failure to equip the tank in question with a flame-proof vent was not negligence, and (6) was not a proximate cause of the explosion and deaths in question; (7) that defendants' failure to vent the tank in question through a riser, etc., was negligence, but (8) was not the proximate cause of the explosion and deaths in question; (9) that the accident in question was not due to an act of God, and (10) was not an unavoidable accident; (11) that $25,000 would fairly and reasonably compensate the minor plaintiff, Ernestine Beck, for the loss sustained as a result of the death of her mother, Christine Beck; (12) that $5,000 would fairly and reasonably compensate for the injuries suffered by Christine Beck from the time of the fire to the time of her actual death; (13) that $2,500 would fairly and reasonably compensate for the injuries suffered by Lorenzo Beck from the time of the fire to the time of his actual death; and that $2,500 would fairly and reasonably compensate for the injuries suffered by Elizabeth Beck from the time of the fire to the time of her actual death.

Grounded upon the jury's findings to the effect that the act of defendants in storing crude oil in a tank which was not vapor-proof was a proximate cause of the explosion and deaths in question and that the maintaining of the tank in question with open holes in the top was negligence and a proximate cause of the explosion and deaths in question, that the accident in question was not due to an act of God and was not an unavoidable accident, and further grounded upon the jury's response to the issues on damages, the trial court rendered judgment against both defendants in favor of Paul M. Branch as temporary administrator of the estates of Christine Beck, Lorenzo Beck and Elizabeth Beck, for $10,000, and in favor of Ernestine Beck for $25,000. Defendants in their amended motions for new trial, among other contentions alleged jury misconduct in that the jury had considered the cost of a college education in determining the amounts of damages to be assessed for Ernestine Beck; certain evidence with respect to such contention was adduced upon the hearing of the amended motions for new trial and at the conclusion of such hearing appellees filed a remittitur of $4,800 to be deducted from the $25,000 awarded to Ernestine Beck. The trial court, after reciting the filing of the remittitur in question, overruled defendants' amended motions for new trial. Tex-Jersey and Great Expectations have appealed.

Appellants by their Points 1 to 8, inclusive, contend in essence that the trial court erred in overruling their respective motions for instructed verdict and that the trial court erred in not holding that there was no evidence to support the jury's answers to Special Issues Nos. 1, 2, 3, 4, 9 and 10 of the court's charge. In their statement under these points in their brief appellants state:

'The argument under the first eight points is being grouped since they are all germane to each other. They present the contention that the evidence does not make out a case of liability against appellants since the uncontroverted evidence shows that the explosion and fire were caused by lightning and appellees failed to discharge their burden of showing beyond speculation and conjecture that lightning would not have produced the same or even more damaging results, regardless of whether the storage tank that exploded was vapor-proof or whether it had open holes in the top.'

Plaintiffs in their trial petition, among other things, specifically pleaded that defendants were maintaining a partially filled crude oil storage tank with open holes in its top fifteen feet above the surface of the ground, the same not being a vapor-proof tank and allowing gases to escape therefrom in violation of the General Oil Ordinance of the City of Kilgore, Texas. Section 13 of the ordinance in question reads as follows:

'Section 13.

'That it shall be unlawful to use any storage tank which is not vapor proof and provided with check valves and which is not permanently connected to a foam generator in a manner approved by the fire chief of the City of Kilgore, nor shall any storage tank be constructed within fifty (50) feet of any building or street.'

The fact that the tank in question was not vapor-proof was admitted by Tex-Jersey by failing to deny a requested admission. Great Expectations answered the requested admission as follows: 'The same is too general to permit your defendant to answer either in the affirmative or the negative. Your defendant does say that the tank in question was not completely air tight.' Appellants' position seems to be that no tank could be absolutely vapor-proof. Plaintiffs' witness Echols explained the meaning of the term 'vapor-proof tank' in the oil and gas industry as follows:

'Q. Do you feel like those tanks can be made completely vapor proof? A. Well, we will have to qualify that in this respect. In a measure, there can't be a vapor-proof tank, as was explained in testimony this morning. It depends entirely on the pressure at which you qualify your statement of vapor-proof. We maintained thief lids that would hold about three to four ounces of pressure within the tank, and the same on the vent. Actually, the pressure at which the thief lid was opened, was a little higher than that in which the vapors were vented outside the vent going off the tank. Gas is just like water or any other fluid; it follows the course of least resistance, so that by maintaining your control, vapor control device on the vent in your tank, your vapors accumulating within the tank are vented out through such opening.'

Mr. Echols also referred to a 'vapor-tite tank where there is no vapor permeating into the atmosphere.'

We quote from the testimony of plaintiffs' witness Clark as follows:

'Q. On the usual construction of tanks, that thief hole has a cap on it, doesn't it? Kind of a weighted-balanced cap? A. Yes, sir.

'Q. When the pressure in the tank builds up, it will escape out that thief hole, will it not, and then when it is relieved, the thief hole will pop back down again? A. It would if there were no other means for it to escape.'

Appellants' Superintendent, Ray Collum, while apparently familiar with the term 'vapor-proof tank' expressed the opinion that the tank in question and no other bolted tank could be made absolutely vapor-proof, but did not testify that other types of tanks could not be made vapor-proof.

We think the facts are undisputed in this record that the tank in question was not vapor-proof as that term was frequently used and well understood in the oil and gas industry.

The jury in response to Special Issue No. 2, found that the tank in question had open holes in the top. Appellees contend that the cover on the manhole in the center of the top of the tank was loose and hanging by one bolt and was the open hole in question and that there were also other open holes. By failing to answer a requested admission, Tex-Jersey admitted that the tank in question was not sealed and contained open holes in its top. Great-Expectations answered such request for admission as follows:

'To Request No. V, your defendant answers that there was a two-foot manhole in the front of the top of the tank; on the north side of the tank in the top there was a guage hole about six inches in diameter and covered by a spring lid or cover, which was intact and working, and to the defendant's knowledge the tank did not contain open holes in its top.'

(1) Plaintiffs' witness Essie Marie Mayfield, who lived in a house very near to the tanks, testified...