Gulf Bitulithic Co. v. R. T. Herrin Petroleum Transport Co.

423 S.W.2d 355, 1968 Tex. App. LEXIS 2997
CourtCourt of Appeals of Texas
DecidedJanuary 18, 1968
DocketNo. 15131
StatusPublished
Cited by1 cases

This text of 423 S.W.2d 355 (Gulf Bitulithic Co. v. R. T. Herrin Petroleum Transport Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf Bitulithic Co. v. R. T. Herrin Petroleum Transport Co., 423 S.W.2d 355, 1968 Tex. App. LEXIS 2997 (Tex. Ct. App. 1968).

Opinion

COLEMAN, Justice.

This is a suit for property damages resulting from a fire allegedly caused by the negligence of appellant. The trial court entered a judgment for appellee, plaintiff in the trial court, based on a jury verdict. The principal questions presented by this appeal relate to the sufficiency of the evidence to support the verdict of the jury.

On October 18, 1963, an R. T. Herrin Petroleum Transport truck driven by Domingo Lopez Baragan carried gasoline to [356]*356the Gulf Bitulithic yard near Columbus, Texas. Upon arriving at the yard, he was directed to place his truck parallel to a gasoline storage tank and between it and a diesel fuel tank. After parking his truck as directed, he connected his two-inch hose with the storage tank by placing the nozzle of the hose in a three-inch opening located about 16 inches from the front of the storage tank and securing it with wire. He then started his truck motor and activated a power takeoff which pumped the gasoline from the tank truck into the storage tank.

Before the entire load of gasoline was transferred to the storage tank, it overflowed. When Baragan noticed this, he stopped the motor, but about ten gallons of the gasoline had spilled. He reported to appellant’s foreman, John Calvin Dixon, that the storage tank had overflowed and that he had about fifteen more gallons to deliver. (At another time Baragan testified that about fifty gallons remained) Dixon directed Ruben Caldwell, another of appellant’s employees, to draw gasoline out of the storage tank. A gasoline pump, somewhat similar to those found in filling stations, was located a foot or two from the front of the storage tank. It was connected to the bottom of the tank by a pipe, and was equipped with a hose and nozzle similar to those found on service station pumps. Power to operate the pump was provided by a gasoline engine, similar to a lawnmower engine, located at the side of the pump. The motor was started by use of a pull cord, and was stopped by grounding the spark plug located on the top of the motor with a metal lever, or by removing a wire to the spark plug.

Caldwell started the motor and filled the gasoline tanks of several trucks as they were driven up for that purpose. In excess of fifty gallons of gasoline were removed from the tank. As he began filling some five gallon cans, Baragan started pumping gasoline into the tank again. As the last of the gasoline was pumped out of the truck tank, it blew air and some gasoline came out of the opening through which the storage tank was being filled. A short time after that a fire started at the gasoline engine, causing the damage to the trailer and gasoline tank, to recover which this suit was brought.

The jury found that (1) just before the occurrence of the fire in question, Ruben Caldwell moved the hose nozzle in such close proximity to the gasoline engine mounted on the storage tank that drippings from the nozzle could strike said engine; that (1A) gasoline drippings from the hose nozzle fell on the gasoline engine mounted on the storage tank; that (2) such moving of the hose nozzle was negligence; and that (3) such negligence was a proximate cause of the fire in question.

The jury also found that Baragan warned Caldwell that he was resuming pumping and that he was not negligent in pumping gasoline into the storage tank while Caldwell was pumping gasoline out of it.

There was testimony that the gasoline motor was not covered while it was being operated, and that the exposed manifold would become hot enough to ignite gasoline spilled on it. There was also testimony that gasoline “more than likely” would be ignited if it hit the hot motor and vaporized and contacted a spark.

Ruben Caldwell testified that he was standing near the engine and was reaching to stop the motor when the explosion happened. He testified that he had dropped the gasoline hose and that no gasoline came out of the nozzle after he dropped it. He said he didn’t squirt any gasoline on the engine with the nozzle. He testified that he turned toward the engine when he saw Baragan running away while screaming: “Cut it off!” He saw gas just piling up out of a little pipe on top of the tank. It went twelve feet in the air and sprayed him. Before he could turn the engine off, there was an explosion. He received burns, the most severe being to his right hand. His shirt did not burn. He started running down the road. On a prior deposition [357]*357he had testified that the gasoline was going at least two feet in the air and falling like spray. He also testified that it was after he saw Baragan running away that the fire started. His testimony was impeached to some extent in other respects by use of his prior deposition. In his deposition he also testified that the nozzle he was using was the same type used in service stations, and that after the lever on the nozzle was released drippings would come out.

Baragan testified that after he started his diesel engine the second time, he climbed up on top of the truck tank to watch it drain out. He saw it empty and his pump “blowed” air and some gasoline “bubbled” out of the storage tank. It barely came up and ran down the sides of the tank. This happened just before the fire. When the last compartment of the tank emptied, he got off of the truck and got in the cab. He stopped the truck engine and power takeoff and told Caldwell that he was through, as he reached for his clipboard. Caldwell turned around and looked at him. That was when the fire started. He was sitting in the cab of the truck and fire came through the window and burned his face. He got out and ran.

While he was sitting in the cab he saw Caldwell filling some cans with gasoline. When he turned toward him, he was also turning toward the gasoline pump, and he had the gasoline hose nozzle in his hand. The fire started when Caldwell turned.

Mr. Vackar, an employee of appellant, testified that he drove a pickup to get gas a short time before the fire and didn’t see any signs that the tank had overflowed. While he could smell gasoline, the odor of gasoline was always present from “drippings on the ground.” “You always had your drippings off your nozzle.”

Mr. George Orange testified that he was working about three hundred feet from the tank when the fire started. He saw the tank overflow the first time, but could not tell how much spilled. He saw the. driver go and talk to Dixon, and then saw two men drive in a pickup truck to the storage tank. In a few minutes, roughly ten or fifteen minutes, the fire broke out. He saw two men run from it. When he first saw them they were running in the road about twenty feet from the tank and Ruben Caldwell was ahead. He didn’t see any gas spilling over at the time the fire “broke out.” He knew that both Caldwell and the Herrin driver were burned by the fire. The driver was burned on the left side of his face and his ear. There was a breeze, but not a strong wind, and it was blowing away from the front of the tank.

There is direct evidence that the fire started at the gasoline engine, but there is no direct evidence as to the cause of the fire. The jury's verdict necessarily rests on inferences drawn from the evidence. The jury necessarily believed that the fire resulted from the ignition of gasoline fumes by the gasoline engine. There is no evidence pointing to an alternative theory.

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423 S.W.2d 355, 1968 Tex. App. LEXIS 2997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-bitulithic-co-v-r-t-herrin-petroleum-transport-co-texapp-1968.