Leake v. Prudhomme Truck Tank Service, Inc.

258 So. 2d 358, 260 La. 1071, 1972 La. LEXIS 5897

• Court: Supreme Court of Louisiana
• Decided: January 17, 1972
• Docket: 50862
• Status: Published

Opinions

McCALEB, Chief Justice.

The defendant, Prudhomme Truck Tank Service, Inc. (hereinafter referred to as Prudhomme), is in the business of delivering bulk gasoline and other related products. Defendant Robert Paul Bertinot is an employee of Prudhomme and a driver of one of its tank trucks used in making deliveries.

The plaintiff, James R. Leake, is the owner of a plant in the Town of St. Francisville where he engaged in the bulk sale and distribution of gasoline, kerosene, diesel fuel and other products. An insurance policy issued by the Hanover Insurance Company, a co-plaintiff, insured him against loss or damage to his inventory and also covered his tort liability, each coverage having a $5,000 limit.

On the morning of February 13, 1968, Bertinot was making a delivery of premium gasoline to Leake’s plant, and while he was in the process of filling one of the storage tanks from his trailer tank, a fire occurred which destroyed the plant and Prudhomme’s tank trailer-truck.

Hanover Insurance Company paid Leake $5,000 in accordance with the indemnity provisions of its policy. Thereafter, it and Leake instituted the instant action against Prudhomme and its employee Bertinot seeking damages for destruction of the plant. Leake claimed damages in the sum of $43,406.69, and Hanover, $5,000. Prudhomme and Bertinot answered, denying liability. Further, Prudhomme reconvened against Leake and his insurer for the value of its tank trailer-truck, and for damages for loss of use thereof.

The trial court rendered judgment in favor of Leake in the amount of $38,618.69, and in favor of Hanover in the amount of’ $5,000. It dismissed Prudhomme’s «conventional demand.

The Court of Appeal reversed the judgment in its entirety. It dismissed plaintiffs’ suit and rendered judgment in favor of Prudhomme on its reconventional demand in the amount of $13,124.20 against: Leake.¹ 238 So.2d 4.

We granted certiorari.

The storage plant fronted on Ferdinand' Street near its intersection with Tunica Street. It consisted of five metal storage-tanks, raised some six to eight feet off the-ground, which held the various types of fuel stocked by Leake. They were located to the rear of the property. Also there-were two buildings, a warehouse and garage. The warehouse was located toward the front of the property and was situated so that the trucks coming in to make deliveries would he aligned almost parallel to the warehouse. The property slopes, from-the rear portion (where the tanks are located), in a southwesterly direction, creating a natural drainage in that direction-into Tunica Street and Ferdinand Street near its intersection with Tunica. However, a small swale which runs from near the tanks to Ferdinand Street diverts some of the drainage in a more southerly direction to a drain located on Leake’s property, near Ferdinand Street.

Bertinot was the one eyewitness to the catastrophe. He testified that shortly after ■6 o’clock in the morning of February 13, 1968, he arrived in St. Francisville with the load of premium gasoline he was to deliver from Avondale, Louisiana to the Leake plant. Inasmuch as the plant was not then open, he telephoned R. M. “Sonny” Watson, the plant manager, and re■quested that he open the plant so that the delivery could be made, which Watson agreed to do. On entering the plant Bertinot parked the truck more or less parallel to the warehouse (and to Ferdinand Street) with its front wheels in or near to the swale. The cab of the truck protruded past the warehouse, so that a person sitting in the cab could look past the warehouse and at two of the storage tanks. The forward visible tank was partially filled with •diesel fuel. Behind it, and some fifty-five feet from the cab of the truck, was the premium gasoline tank into which the gas •on the Prudhomme truck was to be delivered.

Bertinot and Watson made the connections necessary to effect transfer of the gas from the trailer to the storage tank.² The latter signed the “ticket” and, with Bertinot’s knowledge, left the plant to return home to get ready for his regular working day, leaving Bertinot to complete the delivery of the gasoline into the storage tank.

The transfer to the storage tank was effected by means of a pump located on the truck-trailer, the pump being activated by operation of the diesel engine of the truck. It was therefore necessary that the diesel engine remain running throughout the time required to empty the trailer tank.

Bertinot testified that after the pumping operation commenced he sat in the cab of the truck for about thirty to forty minutes at which time he got out, climbed on the trailer and looked into the tanks to see how much gas was left. He estimated that at that time there were about 1000 gallons left in the trailer tank. He got back in the cab and shortly thereafter he heard a “breaking noise” which caused him to look out. As he looked toward the rear of the property, he saw a fluid which he thought to be gasoline falling to the ground from one of the tanks, either the diesel tank or the premium tank which he was filling, and that it was running down toward the truck.³

According to his testimony Bertinot then turned off the pump and the truck’s ignition. Instead of stopping, however, the engine began to race, apparently burning gasoline vapors from the outside. Becoming alarmed Bertinot jumped from the cab and ran across Ferdinand Street. As he ran across the street he fell, and by the time he got up the fire had started.

The record reflects that because of the mechanics of a diesel engine it cannot be stopped in the presence of “outside” gas vapors, merely by shutting off the ignition, because it will continue to operate by burning the vapors. However, the Prudhomme truck was equipped with a readily available emergency shutoff, or compression release, which is designed to shut down the operation of the engine under just such circumstances as existed here. Although Bertinot had been instructed in the use and function of the emergency shutoff he did not activate it, stating that although the engine did not stop when he turned off the ignition, he “really did not think about that emergency shutoff.”

The plaintiff, contending that Bertinot was in control of the operations at the time of the fire, pleaded the doctrine of res ipsa loquitur. Alternatively, by use of expert witnesses, they attempted to show that the fire could have been, and probably was, started by gas escaping from a loose or defective coupling on a tank trailer, or from a break in the hose near the coupling. This theory, provided by Dr. Oscar Albritton, is premised particularly on the finding of Dr. Albritton after the fire that a portion of the exhaust pipe, which has a very high melting point, had been melted in the area of the coupling, which indicated to him that there must have been an excessive amount of fuel burning at this point. He surmised, therefore, that a break in the hose or coupling permitted the escape.

The defendants, on the other hand, urge that the doctrine of res ipsa loquitur is not applicable inasmuch as Bertinot was not in charge and control of the plant, but, rather, that he had control only of his vehicle, and that, therefore, defendants could not be expected to defend against all other possibilities, on the doctrine of res ipsa loquitur. They contend that the evidence establishes that the fire was caused because of the fact that Leake had ordered more than 400 gallons of premium gasoline over the capacity of his storage tank, and that the overflow of this gas from the vent in the tank was the cause of the fire. They argue that the escaping gas from the storage tank ran down the swale, as testified by Bertinot, and directly under the truck; that the operation of the truck’s engine set up convex currents which caused the gas vapors to rise into the engine, accounting for its runaway action; that sparks, created when the motor backfired on the sudden speed-up, ignited the vapors which resulted in flashback conflagration toward the tanks, causing the ensuing holocaust.

There is no doubt but that the gasoline overage was ordered. In fact, it is conceded by plaintiffs. To show that this factor was the cause of the fire defendants rely principally on the testimony of Bertinot, heretofore related, that when the pumping operations were almost complete he saw gasoline coming from the area of the premium tank and down toward the truck.

In rendering judgment for plaintiffs, the trial court decided the case on the basis of the expert testimony, holding that Bertinot’s testimony could not be accepted as credible.

The Court of Appeal, however, reached a contrary conclusion, holding that the trial court erred in completely discounting The testimony of the only eyewitness to the occurrence.

In this Court plaintiffs strenuously urge that we adhere to the conclusion of the trial court in this respect. However, after reviewing all of the testimony and evidence of the record, we are constrained to agree with the Court of Appeal, that there was no basis for disbelieving Bertinot’s testimony. There is no countervailing testimony. Nor is his testimony in conflict with any of the factual circumstances. To the contrary, the physical facts are entirely consistent with his version of what occurred. Moreover, in addition to expert testimony to the effect that the fire could have started in this manner, there is evidence in the record of a fire actually having occurred as a result of an overflowing gas tank which was being filled.

Concededly, there are some discrepancies in the testimony given by Bertinot in his deposition and that given at the trial. But we deem them minor in that they involve unimportant details of actions done routinely by him in his job. Special note is not taken of such tasks, unless something unusual occurs. Consequently, it is not surprising that recollection of them becomes dimmed with passage of time. One alleged discrepancy particularly asserted by plaintiffs is that Bertinot related in his deposition that “almost immediately” after he got back into the cab of the truck (after checking his tanks) he heard the “breaking noise”, whereas, at the trial he testified that he heard the noise about ten or fifteen minutes after he got back into the cab.

We do not find anywhere in the deposition that Bertinot used the phrase “almost immediately”. The words were those of plaintiffs’ counsel when he put to Bertinot the following question: “Now, as I remember your testimony, you said that you got back into the cab and this incident occurred almost immediately after that, is that correct?” To which Bertinot responded, “Yes.” No clarification was made at that time as to what the witness might have understood by the phrase “almost immediately”. Relatively, five, ten or fifteen minutes could have been included.

While the theories of plaintiffs’ expert witnesses might prove helpful in arriving at the cause of the fire, if there had been no eyewitness account as to what happened, we do not think that they can prevail over the effect of Bertinot’s testimony, coupled with the undeniable fact that more gas was being pumped into the tank than it could hold, and the coincidence that the trouble began at about the time that the excess gas was being forced into the tank.⁴

We might also observe that the excessively melted exhaust pipe (on which Dr. Albritton’s hypothesis is based) is not at all inconsistent with defendants’ theory of the occurrence. Clearly, the fire started in the area of the truck. It is entirely possible that the initial heat could have burned the hose covering in the area of the coupling, permitting gravity drainage of gasoline from the storage tank out of the hose there (before the storage tank ultimately ruptured and emptied its contents on the ground). The gas so escaping from the-melted hose at that point would then provide sufficient fuel to melt the pipe. Such a possibility was recognized by Dr. Albritton himself, albeit he said that he did not “believe” that the fire resulted from the overflowing storage tank.

We conclude, therefore, that the Court of Appeal correctly found that the defendant has established that the primary, or initial, cause of the fire was Leake’s negligence in miscalculating the amount of gas which could safely be put into his storage tank.⁵ And for this reason it properly dismissed plaintiffs’ suit against Prudhomme and Bertinot.

We think, however, that the Court of Appeal erred in allowing Prudhomme recovery on its reconventional demand, based on the conclusion that Bertinot was free from negligence in failing to timely observe the overflow, because it was the duty of Leake’s employees to receive the gas safely.

In our opinion Leake was under no greater duty to receive the gasoline safely than Prudhomme was to deliver it safely. Indeed, most of the shut-off mechanisms which might have prevented ignition of the overflowing gasoline, had it been timely detected by anyone, were on the truck and solely under the control of Bertinot. Furthermore, it is clear that Watson’s presence during delivery of the gasoline was neither necessary nor required. It was freely admitted by Bertinot that the procedure followed on the morning of February 13, 1968 had been followed on numerous occasions —that is, Watson would open the plant, sign the ticket and he (Bertinot) would complete the emptying of the trailer tank, unhook the connections and leave. He also said that on many occasions, the plant was left open and that he, alone, started and completed the entire delivery.

In view of the highly dangerous nature of the commodity involved, Bertinot, knowing that none of Leake’s employees was present, had the obligation of keeping a proper lookout to be sure that the delivery process was proceeding smoothly and safely. This he admitted he did not do. Although the gas was escaping at a rapid rate, the record shows that a large portion of it flowing from the storage tank would have followed the natural drainage pattern, away from the truck. Consequently, it must have taken more than a few seconds for enough gas to flow under the truck by way of the swale which contained grass and some debris, puddle thereunder and vaporize sufficiently to cause the engine to accelerate.

By the slightest attention on his part, Bertinot, even without having gotten out of the truck’s cab, could have observed the gasoline overflow when it commenced, instead of later when it was almost too late to take precautions to avoid the disaster.⁶ His conduct in this respect was highly negligent, and was a significant contributing cause leading to the ultimate unfortunate result. This negligence, attributable to his employer, Prudhomme, precludes recovery by the latter on its reconventional demand.

For the reasons assigned the judgment of the Court of Appeal insofar as it awards $13,124.20 in favor of Prudhomme Truck Tank Service, Inc., on its reconventional demand, is reversed and set aside, and the reconventional demand is dismissed. The judgment is further amended so as to cast plaintiffs and defendants for payment of costs, in equal portions. In all other respects the judgment of the Court of Appeal is affirmed.

1 . Leake died while the ease was pending on appeal. The administrator of his succession, James R. Leake, Jr., was substituted as a party plaintiff and as a defendant, in reeonvention.

2 . This consisted of coupling one end of a hose to an outlet on the tank and the other end to a connection at the plant warehouse.

3 . Because the diesel tank was in front of the premium tank it blocked full view of the premium tank. ' Consequently, it is understandable that Bertinot could not then be sure from which tank the fluid was coming, although he said that his immediate thought was that the premium tank he was filling had ruptured and was leaking the gas. This is what he told persons at the scene of the fire while it was still in progress.

4 . We discount entirely the argument made in plaintiffs’ briefs that Bertinot’s testimony shows that, because there were still 1000 gallons left in one of the truck’s three tanks when he cheeked them shortly before the trouble started, the other tanks still contained gas, and that the overage could not then have been flowing into the storage tank. The record reveals that the valves to all three of the tanks were open and they were emptying simultaneously. Besides, the clear import of his testimony was to the effect that he had about a total of approximately 1000 gallons — not 1000 gallons in any one tank.

5 . This conclusion makes our consideration of the plea of res ipsa loquitur unnecessary. Because even if it could be said that Bertinot had such control over the premises as to make the doctrine applicable, the defendants have successfully established the origin of the fire and the negligence of Leake was a causative factor.

6 . Although we note that Bertinot was probably negligent in failing to make use of the emergency shut-off, designed to stop the operation of his engine under the existing conditions, we do not rest our decision on this basis, in view of defendant’s argument that at the time he discovered his danger he was acting under the pressure of a “sudden emergency” brought about by Leake’s negligence. Nevertheless, under the facts above shown, we are compelled to the conclusion that had he observed the escaping gas when he should have, his peril would not then have been so imminent, and he would have had sufficient time to exercise the proper safety precautions.