Thompson v. Economy Hydro Gas Co.

• Decision Date: 13 April 1953
• Docket Number: No. 1,No. 43056,43056,1
• Citation: 257 S.W.2d 669,363 Mo. 1115
• Parties: THOMPSON et al. v. ECONOMY HYDRO GAS CO., Inc., et al
• Court: Missouri Supreme Court

Page 669

257 S.W.2d 669

363 Mo. 1115

THOMPSON et al. v. ECONOMY HYDRO GAS CO., Inc., et al.

No. 43056.

Supreme Court of Missouri, Division No. 1.

April 13, 1953.

Rehearing Denied May 11, 1953.

James A. Singer and John Torrey Berger, of Lewis, Rice, Tucker, Allen & Chubb, Thomas B. Curtis and Ward Fickie, of Biggs, Curtis, Biggs & Crossen, and C. V. Barnhart, of Barnhart & Wood, St. Louis, for plaintiffs-appellants.

Moser, Marsalek, Carpenter, Cleary & Carter, F. X. Cleary, O. P. Owen, St. Louis, for respondent Economy Hydro Gas Co., Inc.

C. Kenneth Thies, Clayton, L. A. Robertson, Alexander & Robertson, Ernest E. Baker, St. Louis, for respondent Phillips Petroleum Co.

VAN OSDOL, Commissioner.

Several plaintiffs have joined their claims in the total sum of $62,463.68 damages for loss of personalty in an explosion at the house in which the personalty was used or stored, the house being the residence of the headmaster of the Country Day School of St. Louis.

The alleged explosive element was butane-propane gas, which had been supplied in condensed liquefied form to the Country Day School by defendant-respondent Economy Hydro Gas Company, Incorporated (sometimes hereinafter referred to as 'Economy'), and which liquid gas had been purchased by Economy from Phillips Petroleum Company, defendant-respondent (sometimes hereinafter referred to as 'Phillips').

Among other allegations of specific negligence, plaintiffs alleged negligence of defendants in failing to odorize or stench the gas with an artificial odorant of such character as to positively indicate the presence of gas, and in failing to test the gas for odor before installing it in the tank at Country Day School. The trial court, on Economy's motion, directed a verdict for that defendant at the close of all the evidence; and the jury returned a verdict for defendant Phillips and against plaintiffs on the issue of negligence of that defendant in failing to odorize the gas as submitted in plaintiffs' principal Instruction No. 2. Plaintiffs have appealed from the judgment for defendants.

Plaintiffs-appellants contend the trial court erred in directing a verdict for defendant Economy. Plaintiffs-appellants urge that under the evidence there was a common-law duty of Economy in the exercise of ordinary care to artificially odorize the gas or to test it prior to its sale and delivery to the ultimate consumer, Country Day School, to determine if the gas had been previously odorized; and that substantial evidence was introduced tending to show the gas had not been artificially odorized.

Plaintiffs-appellants further contend that Instruction No. 4, given at the instance of defendant Phillips, was erroneous in authorizing a verdict for that defendant if the jury found that the gas was artificially odorized (only) to the extent or degree 'as to be discernible by a person with a normal sense of small exposed to a flammable mixture of the gas with air'; and that Instruction No. 3, given at the request of defendant Phillips, was erroneous in advising the jury that the sole issue with respect to negligence of Phillips was whether Phillips negligently failed to odorize the liquid gas 'so that it could be readily detected by the ordinary sense of smell.' It is urged by plaintiffs-appellants that these two instructions were erroneous and were also in conflict with the assertedly correct submission of a gas supplier's duty as submitted in plaintiffs' Instruction No. 2, which hypothesized such duty as being that the gas should be 'stenched with an artificial odorant of such character, as to indicate positively by a distinctive odor, the presence of such gases, down to concentration in air of not over one-fifth the lower limit of combustibility.'

Plaintiffs-appellants also contend the trial court erred in the admission of evidence, and in permitting a witness to state a conclusion as to an ultimate fact.

Defendant-respondent Economy contends the trial court correctly sustained Economy's motion for a directed verdict. Economy urges that, as a retailer of gas produced by and purchased of Phillips, Economy did not, under the evidence, have the common-law duty to artificially odorize the gas or to make a minute and detailed inspection or test to determine if the gas had been odorized.

Defendant-respondent Phillips contends plaintiffs did not make out a submissible case as pleaded and submitted; that plaintiffs' Instruction No. 2 was erroneous, under the evidence introduced in this case, in submitting the issue of negligence of defendant Phillips in failing to odorize the gas 'down to concentration in air of not over one-fifth the lower limit of combustibility'; that the issue of the jury was whether or not the gas was artificially odorized 'so as to be discernible by a person with a normal sense of smell.' But, says defendant-respondent Phillips, even if there was a duty to artificially odorize the gas as submitted in plaintiffs' Instruction No. 2, nevertheless Instruction No. 3, given at the instance of defendant Phillips, advising the jury that the only issue was whether the liquid gas was odorized 'so that it could be readily detected by the ordinary sense of smell,' and Instruction No. 4, directing a verdict for defendant Phillips, if the jury found that defendant Phillips had odorized the gas with 'an odorant in such quantity so as to be discernible by a person with a normal sense of smell exposed to a flammable mixture of the gas with air,' were not prejudicially erroneous under the facts of this case. This, defendant-respondent Phillips says, is because the evidence shows the explosion occurred almost immediately after those present had arrived at the house, the scene of the explosion, and the failure to odorize the gas to the extent of a gas-air mixture less than flammable or combustible could not have been the cause of the injury to and loss of plaintiffs' property.

Defendant-respondent Phillips further asserts that the trial court did not err in the admission of evidence.

The contentions of the parties require a review of the evidence.

The Country Day School of St. Louis, situate in St. Louis County, maintains a residence for its headmaster. The headmaster's house, on July 28, 1947, was a rather large two-story building fronting to the eastward. The first floor of the residence building was divided into an entrance hall, seven rooms, and a butler's pantry. The house was heated by hot air from the furnance in the basement, the hot air being conducted through hot-air pipes venting through the walls of the rooms of the first floor (and second floor) of the building; there was a 'clothes-chute' from the upper floors to the basement and two ash traps at fireplaces, but no stairway connected the living rooms of the first floor with the basement. The sewage plumbing was connected with a septic tank. Access to the basement was afforded by a stairway leading down from the garage which was on the west side and built in as a part of the residence building. An electric switch governing the motor of a 'furance blower' was affixed to the furnace frame or housing. Butane-propane gas was utilized at the residence for heating water and cooking, the hot-water heater being in the basement near the furnace. Gas pipes fed the burner of the hot-water heater (and the burners of the cookstove on the first floor of the building) from a 155-gallon liquefied petroleum storage tank embedded in the ground a few feet from the building. The storage tank was supplied or 'serviced' by defendant Economy under an arrangement (with Country Day School) whereby Economy was to 'keep it filled.'

As stated, the liquefied gas so supplied by defendant Economy was purchased from defendant Phillips and was received by Economy in Economy's tank trucks at the Phillips bulk plant in East St. Louis. When Economy received the liquid butane-propane at the Phillips plant the employees of Phillips pumped in butane to 70% of the desired quantity from its No. 3 (butane) tank; and then pumped in 30% propane from a storage tank containing propane, which propane Phillips had purchased of The Texas Company at its plant at Selmaville near Salem, Illinois. The butane stored in the Phillips No. 3 butane tank at its bulk plant had been piped into the tank either directly from the pipeline of the Phillips Pipeline Company (a subsidiary of Phillips), or from a storage tank containing butane located several hundred feet from the No. 3 butane tank at the bulk plant.

It was shown in evidence that, near the Phillips No. 3 tank at the bulk plant, there are valves and other apparatus by which an odorizing agent may be introduced into the pipes prior to pumping the butane into the No. 3 tank, the odorizing agent utilized by Phillips being one pound of ethyl mercaptan to ten thousand gallons of butane.

The petroleum industry has recognized ethyl mercaptan as an artificial odorant of gas. Ethyl mercaptan 'stinks like rotten cabbage,' and is introduced as a safety precaution to warn of the presence of gas.

Phillips made no record of the odorizing operation, but, when a customer's tank truck was loaded with the liquefied gas, a delivery ticket was made out by an employee of Phillips. A form on the ticket was 'filled in' so that the ticket contained the completed statement, 'Stenched with 1 Lbs. Ethyl Mercaptan per 10,000 Gals.' The Phillips employee who made the entry on a particular delivery ticket was not necessarily the same person who had performed the odorizing operation.

The Texas Company was under obligation to Phillips to odorize the propane sold to Phillips. Phillips made no test at its plant to determine if the propane had been artificially odorized.

Economy did not odorize the liquefied gas purchased and received by it from the Phillips plant, and made no test to determine if the liquid had been odorized, save and except that the employees of Economy, drivers of Economy's tank trucks, were able to discern...