Wichita City Lines, Inc. v. Puckett

• Decision Date: 14 November 1956
• Docket Number: No. A-5826,A-5826
• Parties: WICHITA CITY LINES, Inc., Petitioner, v. Ray PUCKETT, Respondent.
• Court: Texas Supreme Court

Page 894

295 S.W.2d 894

156 Tex. 456

WICHITA CITY LINES, Inc., Petitioner, v. Ray PUCKETT, Respondent.

No. A-5826.

Supreme Court of Texas.

Nov. 14, 1956.

Rehearing Denied Dec. 19, 1956.

Lloyd A. Boas, St. Louis, Mo., Jones, Parish & Fillmore, McDonald & Anderson, Wichita Falls, Looney, Clark & Moorhead, Austin, for petitioner.

Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, William A. Rembert, Jr., Dallas, for respondent.

McCALL, Justice.

Ray Puckett, respondent herein, owned a building in Wichita Falls, Texas. The building fronted 50 feet on Scott Street and extended 150 feet to the alley. Puckett leased the building for $400 per month to a bus company, Wichita City Lines, Inc., petitioner herein, as a 'place to load and unload passengers and as a shelter for passengers and for any other lawful business.' Puckett reserved from the lease a partitioned area of 24 by 52 feet in the front of the building which he used as an office.

Puckett carried fire insurance on the building with two companies, Millers Mutual Fire Insurance Company of Texas and Firemen's Insurance Company. On March 17, 1952, the building was practically destroyed by fire. The insurance companies paid Puckett a total of $34,629.40 in insurance benefits under the policies, and thereby became subrogated to any cause of action which Puckett had against any third person who caused the fire. The insurance companies in Puckett's name sued the lessee bus company alleging that the latter had negligently caused the fire which destroyed the building. They obtained judgment in the trial court against the bus company for the amount of $34,629.40 paid to Puckett, and this judgment has been affirmed by the Court of Civil Appeals. 288 S.W.2d 122. The application for writ of error by the bus company was granted by this Court.

It is urged by the bus company that there is no evidence to support the jury findings that negligence on the part of the bus company was a proximate cause of the fire which destroyed the building. The jury found that the bus company was negligent, through its employee Albert T. Ferguson, in transferring gasoline from a tank truck into an underground storage tank without keeping a proper watch over the operation, that the bus company was negligent in using a filler pipe located inside the building to fill the underground tank, and that the bus company was negligent in having and keeping more than 250 gallons of gasoline in the building upon the occasion in question. Each of the above eats or omissions was found by the jury to be a proximate cause of the damage to the building. Puckett also relied upon the theory of res ipsa loquitur and the jury on these issues found the bus company guility of negligence which was a proximate cause of the damage to the building. Viewed in the light most favorable to the jury findings the evidence presents the following story. When the bus company leased the building in 1951 there was an underground gasoline storage tank of 280 gallon capacity located under the building. At the time of the lease and at the time of the fire the filler pipe for the tank was located inside the building near the rear thereof. Under an ordinance of the City of Wichita Falls filler pipes for gasoline storage tanks must be located outside of buildings. It is undisputed that the above ordinance was violated.

There was another ordinance which made it unlawful for any person 'to have or keep, at any one time, in a room or contiguous rooms, more than 250 gallons of gasoline.' Since on weekends the bus company required more than the 280 gallons of gasoline held by the underground tank, an arrangement had been made with the Texas Company whereby each Saturday afternoon it would leave in the building a full gasoline tank truck with a capacity of 730 gallons. When the underground tank was pumped dry during a weekend, a hose would be attached to the tank truck and the other end of the hose would be inserted in the filler pipe of the underground tank, which would be refilled by the gasoline flowing by gravity from the tank truck. The filler piep was located about four or five feet from the alley wall of the building and the tank truck was parked a few feet from the filler pipe. The filler pipe was a three or four inch pipe which extended about three inches above the floor. The hose from the gasoline tank truck fitted into it very loosely and extended into the filler pipe five or six inches.

The fire occurred at about 1:30 a. m. on a Monday morning. At that time Albert T. Ferguson, a bus company employee, was the only person in the building. He had been filling the buses stored in the building with gasoline from the underground tank. There were six buses and their tanks held about 80 gallons each. The underground tank had been emptied, and he was filling it from the Texas Company tank truck. The tank truck had three compartments with capacities of 160, 240, and 330 gallons. He had already emptied the 160 compartment into the underground tank, and was in the process of letting the gasoline run from the 240 compartment. The gasoline flowed at a rate of 12 to 16 gallons per minute. After Ferguson watched the flow of gasoline for four or five minutes he turned away to take the reading on the fare box of one of the buses. At this point a soldier entered the open back door of the building and made an inquiry of Ferguson whether the last bus had departed. Upon being advised that it had the soldier turned toward the rear door and Ferguson prepared to enter the bus. As he got into the bus, he heard a sound 'just like a wind' and looked around to see a solid wall of flame engulfing the back of the building and coming rapidly toward him. He ran for the front of the building with the fire pursuing him 'right down on the floor.' The floor of the building was concrete and had been swept clean prior to the fire. The wall of flame 'right down on the floor' moved across this clean concrete floor as it chased Ferguson the length of the building. The fire was 'pretty close' behind him as he went out the front door. He ran across the street and summoned the fire department. When he returned the entire building was aflame. The testimony of the assistant fire chief who arrived a few minutes thereafter was to the effect that the intensity of the fire and the intermittent explosions indicated a gasoline fed fire.

The bus company contends that there is no evidence showing how the fire started. It is suggested that the soldier who briefly talked with Ferguson may have thrown down a lighted match or cigarette or that a nail in his shoe may have struck a spark from the concrete floor. It was also suggested that oily rags in a small tool room may have ignited spontaneously or that a spark may have been generated by static electricity or come from defective wiring. Other suggestions were made but there was no proof of the origin of the igniting spark or flame. However, in our view of this case the origin of the igniting spark or flame is immaterial.

The bus company was guilty of negligence in violating the city ordinance forbidding the use of a filler pipe inside the building. The purpose of this ordinance was to avoid the danger of fire arising from fumes escaping from the filler pipe as gasoline is put into the underground storage tank. The fire marshal testified that when such fumes escape inside a building they settle near the floor because gasoline fumes are heavier than air, 'and the first spark or fire that touches them, why you have got an explosion.'

The ordinance was violated. The danger to be avoided occurred. The gasoline fumes were ignited. We believe the jury under the circumstances was justified in finding that it was the gasoline fumes which caught file and produced the wall of fire low on the floor which pursued Ferguson across the bare concrete. The jury undoubtedly agreed with Ruckett that the concrete was not igniting to produce this explosive, fast moving wall of flame. The jury could logically and reasonable infer from the above evidence that the gasoline fumes escaping from the filler pipe were ignited, and thus the negligence of the bus company in using an inside filler pipe was a proximate cause of the damage to the building. It was the right of the jury to reject the suggestions of the bus company that natural gas from a leak in a nearby building may have permeated the air in the Puckett building and accounted for the explosive nature of the fire, or that the same might have been due to a barrel of lubricating oil in the small tool room. The jury undoubtedly believed that neither suggestion explained the fire which originated in the back in a sudden explosion and rolled low on the floor across the building.

We believe that the evidence supports the other findings of the jury as to negligence and proximate cause but there is no necessity for discussion of these other findings. Through the negligence of the bus company gasoline fumes were allowed to escape into the building where they settled near the floor and created a highly dangerous situation. The bus company is not relieved of the consequences of this negligence because the spark that ignited the fumes was of unknown origin. It could have foreseen that the highly inflammable fumes were likely to be ignited, and the fact that a soldier deliberately or negligently ignited them by dropping a lighted match or cigarette, or that a spark or flame of unknown origin ignited the fumes, does not break the chain of causation. Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506; Texas Co. v. Gibson, Tex.Civ.App., 88 S.W.2d 757, reversed on another point, 131 Tex. 598, 116 S.W.2d 686; Fort Worth Gas Co. v. Cooper, Tex.Civ.App., 241 S.W. 282 (er. dism.).

Petitioner bus company relies upon Exporters' & Traders' Compress & Ware house Co. v. Schulze, Tex.Com.App., 265 S.W. 133; National Hotel Co. v. Motley, Tex.Civ.App., 123 S.W.2d 461 (er. dism.); Texas Hotel...