Zero Wholesale Gas Co., Inc. v. Stroud, 77-182

• Decision Date: 17 July 1978
• Docket Number: No. 2,No. 77-182,77-182,2
• Citation: 264 Ark. 27,571 S.W.2d 74
• Parties: ZERO WHOLESALE GAS CO., INC., Appellant, v. June STROUD, Appellee
• Court: Arkansas Supreme Court

Page 74

571 S.W.2d 74

264 Ark. 27

ZERO WHOLESALE GAS CO., INC., Appellant, v. June STROUD, Appellee.

No. 77-182.

Supreme Court of Arkansas, Division No. 2.

July 17, 1978.

Supplemental Opinion On Denial of Rehearing Oct. 9, 1978.

Atchley, Russell, Waldrop & Hlavinka by Victor Hlavinka, Texarkana, Tex., for appellant.

Young, Patton & Folsom by Damon Young, Texarkana, Hubbard, Patton, Peek, Haltom & Roberts by William L. Peek, Jr., Texarkana, Tex., for appellee.

FOGLEMAN, Justice.

Appellee sued appellant Zero Wholesale Gas Company and Butane Gas of Hope to recover damages to her restaurant arising out of a gas explosion and fire which occurred on December 23, 1975, on premises owned by Butane Gas Company of Hope, Inc., and on which it operated a propane gas storage yard. Appellee alleged that both defendants were guilty of negligence which was the proximate cause of her damages and that they were strictly liable for miscarriage of an ultrahazardous activity. The case was submitted to the jury on both theories. The jury answered interrogatories finding that neither party was guilty of negligence, but that appellant was guilty of miscarriage of an ultrahazardous activity which was the proximate cause of appellee's damage. The verdict fixed appellee's damages at $26,500. Appellant urges three points for reversal, but all are premised upon the same basic contention, i. e., that the evidence failed to show any basis for a finding of miscarriage of an ultrahazardous activity by it. One point for reversal relates to the giving of instructions on that theory, another to the existence of evidence to support the verdict and the third to the applicability of the theory to the facts.

The fire and explosion occurred when a delivery of propane gas was being made by appellant to the storage yard of Butane Gas of Hope in a tractor-trailer transport truck, driven and operated by Francis Garland (Pat) Reeves. When the transport truck arrived, two of the delivery trucks owned and operated by Butane Gas were being filled from storage tanks at the yard in order to make deliveries to retail customers.

Appellee called Harry Burns, Director for the Liquified Petroleum Gas Board for Arkansas as a witness. He testified that both propane and butane gas are inherently dangerous, highly flammable products that require skill in handling. On cross-examination he said that propane is a substance that is in common usage in areas where natural gas is not available and that the likelihood of injury or damage is greatly reduced if the utmost care is used. According to Burns, whenever a hole develops in a propane vessel, there is a good deal of clouding and spewing which is attributable to vaporization. Burns said that propane tends to vaporize at any temperature above 44 degrees below zero and that at about 50 degrees Fahrenheit, there is 60 to 80 pounds per square inch pressure in propane. Burns investigated the fire at the storage yard two or three hours after it occurred. At that time appellee's restaurant next to the storage yard had been completely consumed by fire. He found that the gas company's tank No. 1 became overheated and ruptured and that its head had been propelled across Highway 67 and into an adjacent field by expansive forces produced by fire; tank No. 2 was off its support but remained on the premises; tank No. 3 was ruptured but was still in the area; the fourth tank was ruptured and severely distorted due to overheating but remained on its supports; a fifth tank remained intact on its supports, but was severely distorted from heating of the metal. Burns found a large tanker type transport truck owned by appellant in the storage yard. It had been brought there to deliver propane gas to the storage yard by Pat Reeves, an employee of appellant.

A properly operating relief valve on a transport truck belonging to appellant was found open by Burns. The cab of the truck was severely damaged and several tires were burned away. A hose that was attached from the discharge connection of the transport truck to the discharge or field connection of the 30,000 gallon tank bore indications of having been subjected to flame and intense heat. He found the hose ruptured.

A pump is used to force gas from the transport truck into a storage tank. The pump is operated by a power take-off with which the transport truck is equipped. Burns said that Reeves stated that he had been in the process of engaging the power take-off when the explosion occurred. Burns testified that there had apparently been a discharge of gas from the hose but there would be no fire at the point where the gas was escaping. He stated that the velocity of the gas would have to approximate seven feet per second before a flame would burn.

Reeves testified that he had been using the transfer hose for two or three years. It was a regulated propane hose with working pressure rating of 350 pounds per square inch and a minimum bursting pressure rating of 750 pounds per square inch. Reeves said that he had left the truck motor running according to standard procedure in order to operate the pump, had hooked up the power take-off shaft, had fastened his hose to the storage tank and opened three valves, but had not opened a valve which, when closed, prevented the flow of gas into the hose when "the excitement started," while he was engaging the clutch to operate the power take-off. He said he turned and immediately saw fire 40 to 50 feet from him in the pump area where one of the delivery trucks had been loading. He described the fire as being a large hot one which occurred in a flash. Reeves ran down the road to a point of safety where he was joined two to four minutes later by Carlton Terry, the driver of one of the delivery trucks.

At the time of the "excitement" Reeves had opened a valve which would permit gas to flow from the 30,000 gallon storage tank, but he had not attached a vapor line which equalized the pressure between the storage tank and the transport tank, because this is the last step in the process of transferring the gas from the truck to the storage tank. Because of the presence of the delivery trucks, Reeves was unloading from a place he did not usually park.

Carlton Terry said that he immediately fled the scene when he heard the explosion and, as he was running down the road, he looked back and saw fire coming from the front of appellant's truck. Monty Malone, who lived in a mobile home 25 yards from the storage tanks looked out his window when he heard something similar to a sonic boom. He said he saw fire coming from beneath appellant's truck near the rear of the trailer on the driver's side. He said that, while he had seen gas dripping from the hose on the truck, he did not see flame shooting out from it.

According to the owner of Butane Gas Company of Hope, when he and his employees went to the place the delivery truck had been left to close off or cap valves to prevent the outflow of fuel, there was gas flowing out of the relief valve on appellant's transport truck. He testified that the valve had been closed, but reopened and was left open, because it was better to have the fuel burn than to have raw fuel in the atmosphere. He said that the fuel from the transport truck burned for two or three days. He found the 30,000 gallon tank empty and said that it had contained 13,000 to 14,000 gallons before the fire.

We do not agree with appellant's contention that the delivery of propane gas is not, as a matter of law, an ultrahazardous activity. Appellant correctly points out that we have stated that an activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person or chattels of others which cannot be eliminated by the exercise of the utmost care And (b) is not a matter of common usage. See Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833; North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874. We cannot say, as a matter of law, that the delivery of propane gas does not involve a risk of serious injury to persons or damage to property which cannot be eliminated by the exercise of ordinary care. The testimony of Burns not only fails to support this argument, it actually tends to support a contrary view. He said that the Likelihood of injury is greatly Reduced if the utmost care is used. This does not mean that the risk could be Eliminated by the utmost care. See McLane v. Northwest Natural Gas Co., 255 Ore. 324, 467 P.2d 635 (1970). In view of this testimony, the question as to factor (a) was for the jury.

Appellant also asks us to hold that delivery of propane gas is, as a matter of law, a matter of common usage, largely because propane gas is a substance in common usage. This argument overlooks the fact that the Activity must be of common usage. A witness testified that delivery of propane gas is a routine procedure, but there is no evidence to indicate that the Delivery of propane gas is a matter of common usage. If it is, then the existence of the Liquified Petroleum Gas Board created by Ark.Stat.Ann. § 53-701 et seq. (Repl.1971) might be subject to question from the standpoint of both utility and constitutionality. See Gray's Butane Wholesale, Inc. v. Arkansas Liquefied Petroleum Gas Board, 250 Ark. 69, 463 S.W.2d 639; Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171.

We do not agree with appellant that the standard of care for a case such as this was established as ordinary negligence by such cases as Arkansas Louisiana Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 and Dixie Furniture Co. v. Deason, 226 Ark. 742, 293 S.W.2d 706. In Stracener and Deason the question of the standard of care was not really an issue. The statement from the opinion in Stracener on which appellant relies was made in holding that violation of a company regulation by its employee constituted a basis of liability. We held that the rule did not establish a standard of care and...