Tyreco Refining Co. v. Cook

• Decision Date: 12 October 1937
• Docket Number: No. 5146.,5146.
• Citation: 110 S.W.2d 219
• Parties: TYRECO REFINING CO. v. COOK.
• Court: Texas Court of Appeals

Page 219

110 S.W.2d 219

TYRECO REFINING CO. v. COOK.

No. 5146.

Court of Civil Appeals of Texas. Texarkana.

October 12, 1937.

Rehearing Denied October 28, 1937.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Action by C. R. Cook against the Tyreco Refining Company and others, wherein named defendant filed a cross-action against its codefendants, R. T. Sullivan and J. R. Knight, a partnership operating under the trade-name of Waco Oil Company. From the judgment, the Tyreco Refining Company appeals.

Reversed and remanded as to all parties.

Darden, Burleson & Wilson, of Waco, and Pollard & Lawrence, of Tyler, for appellant.

Lasseter, Simpson, Spruiell & Lowry and Nat Gentry, Jr., all of Tyler, and Kyle Vick and Aubrey Morris, both of Waco, for appellee.

WILLIAMS, Justice.

In this action for damages against the appellant Tyreco Refining Company, and R. T. Sullivan and J. R. Knight, a partnership operating under the trade name of Waco Oil Company, the appellee, Cook, plaintiff below, alleged a cause of general negligence, and pleaded in the alternative specific acts of negligence against the refining company. He also pleaded specific acts of negligence against the Waco Oil Company. Appellant refining company answered with a general demurrer, special exceptions, general denial, and pleaded that plaintiff was guilty of contributory negligence in failing to keep proper lookout and approaching and remaining close to the place where the truck was being filled; and by cross-action over and against the Waco Oil Company pleaded specific acts of one McNair as being a proximate, the sole proximate, and a new and independent cause of the injuries to appellee. The pleadings of appellee as to Waco Oil Company and the cross-action of appellant were grounded upon the allegation that McNair negligently struck a match and this caused the explosion.

Appellee alleged a case of general negligence under the res ipsa loquitur doctrine against the refinery; that the transfer of the gasoline and the property and premises were under the exclusive management and control of the refinery; that the igniting of the gasoline vapors and explosion thereof was not such a consequence as in an ordinary course of things happens, or would have happened if the refinery had used due and proper care; that the igniting of the gasoline and fumes, and the explosion thereof, was caused solely and only by and through the carelessness and negligence of the refinery, which caused and permitted said gasoline, vapors, and fumes to ignite and explode. He further alleged that he did not know, and therefore could not allege, the exact act of negligence on the part of the refinery which caused said explosion to occur; that the reason and cause for the explosion was peculiarly within the knowledge of the refinery, and was not within his knowledge.

Appellee pleaded in the alternative that said gasoline at the time it was being loaded into McNair's truck was at a high and dangerous temperature; that gasoline fumes and vapors rapidly collected around appellee on the premises of appellant, as a result of the negligence of appellant in permitting and causing gasoline of a high and dangerous temperature to be loaded into the truck at said refinery; that the explosion occurred by reason of some spark or flame coming in contact with these fumes and vapors, the exact agency which produced said spark or flame being unknown to appellee; that under all the facts and circumstances alleged in the petition, appellant should have anticipated that same would ignite or explode if permitted to collect and gather and appellant was negligent in permitting said situation to occur and injure the appellee.

The refinery contends that there was no evidence of general or specific negligence on its part which proximately caused the injuries; and no evidence to support the jury findings on special issues Nos. 2, 3, 4, 6, and 7.

To No. 2, the jury answered from a preponderance of the evidence that the explosion and fire on the occasion in question were caused by the refinery; to No. 3, that the causing of said explosion and fire by the refinery was negligence; to No. 4, that it was a proximate cause of the injuries; to No. 5, that the refinery permitted gasoline fumes and vapors to collect at the time and place in question; to No. 6, that permitting same to collect at the time and on the occasion in question by the refinery was negligence; and to No. 7, it was a proximate cause of the injury.

This suit grows out of the ignition and explosion of gasoline, gasoline fumes, and vapors which occurred around 5:00 p. m. on a day in January upon premises owned and under the management of appellant. Appellee and one W. A. McNair, employees of the Waco Oil Company, each in charge of an oil truck, were upon these premises to obtain petroleum products. McNair had driven his truck under the loading rack and killed the motor. The McNair truck was being loaded with gasoline with Jack Hines, an employee of appellant, on top of this truck in charge of the hose and connections directing and making a transfer of gasoline from the storage tank into this truck. McNair with a woman companion was seated in the cab engaged in conversation with each other and with appellee who had walked over to the McNair truck. Cook's truck had been filled and he had parked it nearby and was waiting for the McNair truck to be loaded. Other trucks were upon the premises waiting to be loaded. This was the situation when the ignition and explosion occurred in and about the McNair truck and which burned and threw appellee and Hines in opposite directions. From the testimony and all the physical facts, this ignition and explosion occurred immediately in and about the McNair truck which was near the loading rack and upon appellant's premises.

Appellee testified that the gasoline being transferred into this truck was awfully hot; that it was awfully hot because of the great amount of fumes which was rising from it; that when he placed his hand on the side of the truck it felt as hot as body temperature; that the gas was coming by jerks or heads with air in it, and that air in gasoline would have a tendency to cause vapor to rise more and throw gasoline vapors out of the tank; that the gasoline looked milky because of the amount of air in it. McNair corroborates this testimony to some extent, in that he noticed lots of vapors and fumes around the tank.

Cook, being there on a business errand, was lawfully upon the premises of appellant. Appellee did not have a hand nor a voice in the operations then going on. McNair was seated in his cab and was not exercising any management in the transfer of this gasoline into the truck. Hines, the servant and employee of appellant, alone was conducting and managing the transfer of this gasoline. The evidence is silent as to what thing caused the spark or flame.

The testimony is clear that over a long period of months loading many trucks each day an explosion had not occurred, and that this explosion was such as in the ordinary course of things does not happen.

It is well settled that if the thing which causes the injury complained of is shown to be under the management or control of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want...