Texas Co. v. Gibson

• Decision Date: 26 November 1935
• Docket Number: No. 2832.,2832.
• Parties: TEXAS CO. v. GIBSON et al.
• Court: Texas Court of Appeals

Page 757

88 S.W.2d 757

TEXAS CO. v. GIBSON et al.

No. 2832.

Court of Civil Appeals of Texas. Beaumont.

November 26, 1935.

Rehearing Denied December 18, 1935.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action by Lois Gibson and husband against the Texas Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Wm. K. Hall, of Houston, and Davis, Avery & Wallace, of Center, for appellant.

E. B. Lewis, of Center, for appellees.

WALKER, Chief Justice.

This was a suit by appellees, Lois Gibson et vir., against appellant, the Texas Company, for the value of a filling station owned by them in the town of Joaquin, Shelby county, and which was destroyed by fire on the morning of June 17, 1932. The town of Joaquin has a population of about 600. This filling station was located on a corner lot in the business section of the town where the main highway through the town is intersected at right angles by another road. The gasoline pumps that served this station were situated about 12 feet from the road, supplied by underground tanks. A considerable traffic, both pedestrian and by vehicles, passed this corner daily and the pedestrians walked very near the pumps. That type of service pump would not draw all the gas from the storage tanks. The pumps belonged to appellant, and on the afternoon before the fire appellant removed the pumps, acting under the following clause of its written lease contract with appellees:

"(5)—Removal of Property. Lessee shall have the right at any time during the continuance of this lease or within thirty (30) days after its termination to sever and remove all fixtures, equipment and other property of lessee placed on said premises by lessee during the term of this or any previous lease, or any extension or renewal thereof."

Appellant did not notify appellees of its intention to remove its pumps and appellees did not know that they had been removed until after the fire. In taking out the pumps, appellant's agent left exposed the pipes that connected them with the underground tanks. It was the theory of appellees' petition that gasoline escaped from the storage tanks through the exposed pipes, saturated the concrete surrounding the exposed pipes, and that one Bill Faulke, while standing near the exposed pipes, lighted a match, thereby causing the fire. The petition charged negligence against appellant in the following respects: (a) That appellant removed the pumps without notifying appellees and giving them an opportunity to protect their property, and (b) that appellant failed to use ordinary care in "stopping" or "closing" the pipes. The defendant's answer was by general denial, etc. The jury found the following facts: (a) Appellant removed the service pumps without notice to appellees; that this was negligence and a proximate cause of the destruction of the filling station; (b) appellant removed the pumps "without covering, stopping and plugging the pipes which led to the gasoline storage tank or tanks at said station"; that this was negligence, and a proximate cause of the destruction of the filling station; (c) appellant, after removing the pumps, "left the pipes leading to the storage tank or tanks open and exposed"; that this was negligence, and a proximate cause of the destruction of the filling station; (d) the value of the filling station, immediately before the fire, was $1,050, and its value "immediately after the fire" was $50; (e) Bill Faulke "struck a match which ignited the filling station in question"; his act in striking the match was not the proximate cause of the fire which destroyed the building; his act in striking the match was not "a new and independent cause" of the fire which destroyed the building.

Appellant's first contention is that, under the clause of its written contract copied above, it had the absolute right to remove its tanks without notice to appellees and that, as a matter of law, on the facts of this case it was not guilty of negligence in removing them and leaving the pipes exposed. This contention is denied. Since the pumps could not take all the gasoline from the storage tanks, appellant was bound to know that gasoline was both volatile and highly explosive, and that, in removing the tanks without notice to appellees, it was exposing the property to a risk of fire. Appellant was appellees' tenant. In using the property under its tenancy contract, the law required it to exercise ordinary care for the preservation of the property, and, in abandoning the property at the expiration of its tenancy contract, appellant was bound by law not to expose the property to unreasonable risks of destruction. It was for the jury to say whether or not, on the facts summarized above, appellant rested under the duty of notifying appellees that it was removing the pumps and that it was leaving the pipes exposed. In Commercial Union Assurance Co. v. Gulf Refining Co. (Tex.Civ.App.) 174 S.W. 874, the court ruled that leaving exposed open gasoline containers on the dock was negligence. In McGuffey v. Pierce-Fordyce Oil Ass'n (Tex.Civ.App.) 211 S.W. 335, it was held that gasoline is highly explosive and that it may constitute a nuisance when placed upon property situated in a thickly settled portion of the town and that negligence may flow from such an act.

Appellant contends also that the evidence did not raise against it the issue of proximate cause in that (a) the fire did not originate from the exposed pipes, and (b) the fire was proximately caused "by the independent intervening act of a trespasser, Bill Faulke." The following quotation from the testimony of Bill Faulke gives the story of the fire, questions and answers reduced to narrative:

"My name is Bill Faulke. I live in Joaquin. I have resided in Joaquin since 1929. My business or occupation is filling station operator. Prior to going to Joaquin I lived at Center; I worked for the Martin Filling Station here in Center and the Center Garage. I remember the occasion of the filling station and building that was operated by Mr. Daw burning in 1932 at Joaquin. I do not remember what day of the week it was; it was night, somewhere near two o'clock. That day I had been all over town, like I was in the habit of doing then. I didn't have any occupation then,—around over town. I made a trip that night; I went to Connell's Ferry that night somewhere near sundown, between sundown and dark, fishing. Tom Mitchell went with me. I don't know how long we stayed out there on the river, we didn't have any time with us; we supposed it was near midnight when we started in. When we came back there was no one else with us, except me and Mr. Mitchell. When we got back to Joaquin the car stopped between the Texaco Filling Station and the bank. The Texaco Filling Station is the station of Mrs. Gibson, which was operated by Mr. Daw. That is the one I have reference to. When we came back from Connell's Ferry we were riding in my car. I drove from Connell's Ferry back to Joaquin. When I stopped the car between the bank and the filling station Mr. Mitchell got out—I got out. Mr. Mitchell got out —and I don't know whether he got out or just slipped over. You see, it was in a whoopee, and all we had to do was just slip off and on. The car later drove away from where it stopped there. When it drove away from there I had got out; Mr. Mitchell took the car. I was supposed to wait for him thirty minues. Mr. Mitchell went toward Logansport. I walked over toward the filling station to wait for him. * * *

"After Mr. Crawford passed and got up somewhere near the ice house, while I was dodging him, I had made a smoke—I made a cigarette; and walked in front there and was watching him and I just got a match—I will show you how I did it. If you strike a match in the dark, and don't want anybody to see you, you would do it quick and quick as you could light you would throw it down and try to put it out, or something. When I struck the match I was standing near the door of the filling station. When I struck the match I lit my cigarette as quick as I could and threw it down. When I lit the match and threw it down a blaze came up from the floor it looked like—it must have enveloped the place there—it must have been four or five feet wide, and right over those tanks where they had been taken up; I got away as fast as I could. I did not know whether there was any gasoline in the tanks or not. I noticed then that the service pumps had been taken away."

On this testimony the fire started immediately over the exposed pipes. Because of the nature of gasoline, it was for the jury to say whether or not the gasoline in the concrete escaped from the exposed underground tanks.

The fire resulted as a natural sequence from the negligence found against appellant by the jury. True, the act of Bill Faulke in lighting his match was a new intervening agency, but it did not break the causal connection of appellant's negligence. This filling station was in a small town, situated on one of the most prominent corners of the town. The public had access to it day and night. As a fact issue, appellant should have foreseen that some member of the public would travel near or across the exposed apron of the filling station; it should have foreseen that members of the public would use the filling station as a meeting point. This fire resulted from a very common act—a man waiting at the filling station for his friend and lighting a cigarette while waiting for his friend. We think Fort Worth Gas Co. v. Cooper (Tex.Civ.App.) 241 S.W. 282, 284, is in point. In that case the court said:

"It could not be said that there was no proximate causal relation between the appellant's negligent act and the appellee's injury. The bare fact or circumstance that the flame or fire from the cooking stove lighted by appellee operated upon the accumulated gas confined in the closet and produced the combustion could not, we think, be held, as a matter of law, in the...