Texas Co. v. Charles Clarke & Co.

• Decision Date: 04 November 1915
• Docket Number: (No. 6974.)
• Citation: 182 S.W. 351
• Parties: TEXAS CO. v. CHARLES CLARKE & CO.
• Court: Texas Court of Appeals

Page 351

182 S.W. 351

TEXAS CO. v. CHARLES CLARKE & CO.

(No. 6974.)

Court of Civil Appeals of Texas. Galveston.

November 4, 1915.

Rehearing Denied December 16, 1915.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Suit by Charles Clarke, doing business as Charles Clarke & Company, against the Texas Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

T. J. Lawhon, of Houston, for appellant. James B. & Charles J. Stubbs, and Marion J. Levy, all of Galveston, for appellee.

PLEASANTS, C. J.

Appellee, Charles Clarke, who conducts his business under the name and style of Charles Clarke & Co., brought this suit against appellant, a corporation, to recover damages in the sum of $8,000, the alleged value of an oil barge owned by appellee and which was destroyed by fire which appellee alleges was caused by the negligence of appellant. The barge, which was known as the "Hopper," was destroyed by fire on March 13, 1913, while being loaded with oil by agents of appellant at Pier A, Southern Pacific Docks at Galveston. Plaintiff's petition contains the following allegations of negligence on the part of defendant and its employés upon which he relies for recovery:

"That as plaintiff is informed, believes, and therefore alleges, the agents and employés of defendant performing said work were H. L. Stewart, E. C. Whitehead, A. Fleming, R. Hayden, and others whose names are unknown to this plaintiff, and which he has been unable to ascertain after diligent inquiry. That while loading said barge with oil, the defendant and its said agents and employés negligently caused, or permitted, the oil in said barge to catch fire, thereby causing the complete destruction of said barge, which was of 280 tons gross burden and was of the fair and reasonable value of $8,000.

"(2) That defendant was also negligent in not using or requiring its employés to use in and about the loading of said barge one or more electric lights, or other lights of such character or so screened and sheltered as not to set fire to said oil, or the gases or vapors thereof, which plaintiff avers were caused to ignite by the negligent failure on the part of the defendant, its servants and agents, to exercise proper care in the selection and use of reasonably safe lights. That but for such negligent failure the gas proceeding from said oil and the said oil would not have ignited and have destroyed said barge.

"(3) That the said fire was also proximately caused by the careless use or management on the part of said defendant, its said servants and agents, of one or more lights or lanterns, which were used by them on the night of March 12th and early morning of March 13, 1913, in coupling the hose, through which the oil was conducted from the tank or tanks on shore, into the body or hull of the barge, and which lights or lanterns, or not less than one of them, was also used by one of said employés in inspecting the said work and the progress of the loading, or allowed to be placed or remain on or near said barge and the oil being loaded thereon.

"(4) That plaintiff does not know which of the said employés of defendant held or placed the said light or lantern, or permitted the same to be done, but alleges that it was one of them, and that while not holding said light or lantern the same was placed on the barge, or near the barge on the wharf by said employé, or permitted to be placed there, and while being carried, or at rest, was in dangerous proximity to the cargo of oil being loaded and the gases proceeding therefrom.

"(5) That one or more of said lights was negligently brought or placed by said defendant, its servants and agents, or one of them, or allowed to be placed, so near to said oil and said barge that the gas or vapor from said oil, or the oil itself, came in contact with the flame of the light or lantern, and, being highly inflammable, caught fire, which fire was at once communicated to the entire cargo and the barge and it was impossible, by the exercise of any diligence whatever, to have extinguished the flames and have prevented the destruction of the barge, which plaintiff, however, succeeded in removing from its position at the pier so as to prevent probable loss or damage of cotton on the wharf and injury to other vessels, which were near by.

"(6) That defendant was charged with the duty of exercising reasonable care in the fulfilling its contract and undertaking to load said barge with oil, and if said care had been exercised by defendant, the fire would not have occurred, but defendant and its servants and agents failed to use ordinary care in the performance of their duty, and the occurrence of such fire, while defendant was loading such barge, primarily places the responsibility upon said defendant. That defendant's agents were negligent in bringing or allowing the fire or flame to be in too close proximity to the oil in the barge and to the oil, vapor, or gas emanating therefrom.

"(7) That defendant is a dealer in fuel oil, and was undertaking in the course of its business the loading of said barge, and was in the exclusive charge and control of said loading."

The defendant's answer contains special denials of each of the allegations of negligence contained in the petition. It also specially denies the allegation that E. C. Whitehead was its agent or employé and as such went upon or was engaged in the work of loading said barge, and the further allegation that the barge while being loaded was in the exclusive possession and control of defendant.

The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the value of the barge with interest, amounting in the aggregate to the sum of $8,707.

The evidence shows that, while the barge Hopper was being loaded with oil by defendant's agents and employés, the gases arising from the oil became ignited, and the fire thus started destroyed the barge and its contents. There is no direct evidence as to how the ignition of the gas and oil occurred. The oil was being pumped into the barge from defendant's reservoir, which is situated about one mile from the pier at which the barge was lying. A pipe line extended from the reservoir to the wharf, and a flexible hose about 30 feet in length carried the oil from the end of the pipe line into the hold of the barge. At the time the oil became ignited, there was no opening into the hold of the barge except the manhole through which the oil was being pumped. The work of loading the barge began about 9 o'clock at night, and the explosion and fire occurred about 3 o'clock the next morning, shortly before the loading was completed.

The captain of the barge, who was in the cabin at the time the explosion caused by the ignition of the oil gas occurred, testified that just before the explosion he heard some one step on the barge from the wharf. Just after the explosion, E. C. Whitehead was rescued from the water alongside the barge and was found to be badly burned. After the fire a switchman's lantern was found in the wreck of the barge below the manhole through which the oil was being pumped at the time of the explosion. No lantern of this kind was used or kept on the barge. An employé of the defendant named Stewart had charge of the work of loading the barge. When he attached the hose to the hydrant at the end of the pipe line to start the flow of oil into the barge, he was assisted by two other men, the name or identity of neither of whom is shown. One of these men had a switchman's lantern similar to the one found in the bottom of the barge after the fire. After the hose had been properly adjusted and the oil began to be pumped into the barge, Stewart went from the barge to the pumping station and procured an electric flashlight for use in examining the progress of the loading. He was frequently on the barge for this purpose and made several reports by telephone to the engineer at the pumping station as to the progress of the work. Shortly before the fire occurred, he made an examination, and, finding that the loading was nearly completed, he went to the telephone, which was about 2½ blocks from the barge, to inform the engineer of this fact and advise him to "slow down" his pump. While Stewart was away from the barge for this purpose, the explosion occurred and the fire started.

The only evidence as to the employment of Whitehead by the defendant is the following testimony of defendant's employé who was operating the engine at the pumping station on the night of the fire:

"Q. Were you working for the Texas Company in March last year? A. Yes, sir. Q. Did you know Mr. E. C. Whitehead? A. Yes, sir. Q. Was he working for that company? A. Yes. Q. Did you know what kind of work he was doing that night, yourself? A. No, sir; I don't know exactly what he was doing that night. Q. Do you know he was employed by the company? A. I know he was employed; I don't know whether he was employed by the company that night or not. Q. Did anything happen to him that night? A. He got burned that night. Q. Did you see him after he got burned? A. I seen him after he got burned. Q. Had he been working for the company, the Texas Company, so far as you know? A. As far as I know, he had been working for the Texas Company. Q. When was the last time you saw him working for the Texas Company before he got burned? A. I don't remember; I worked nights at that time. I don't know where Whitehead was working that night, if he was working; I don't know what Whitehead was doing that night."

This is the only testimony in the record bearing upon Whitehead's employment by the defendant, or the character and scope of the duties of his employment. Upon this evidence the trial court made the following findings of fact:

"The said Whitehead was employed by the Texas Company at the time of the destruction of said barge. While the evidence does not directly reflect that the said Whitehead was working, in the...