Lemaster v. Chaney & Son Gas Co.

532 S.W.2d 720, 1976 Tex. App. LEXIS 2423
CourtCourt of Appeals of Texas
DecidedJanuary 29, 1976
DocketNo. 4848
StatusPublished
Cited by2 cases

This text of 532 S.W.2d 720 (Lemaster v. Chaney & Son Gas 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
Lemaster v. Chaney & Son Gas Co., 532 S.W.2d 720, 1976 Tex. App. LEXIS 2423 (Tex. Ct. App. 1976).

Opinions

WALTER, Justice.

Debra Jean Lemaster, by and through her father, Ben H. Lemaster, as next friend, and Ben H. Lemaster, individually sued Chaney & Son Gas Company for damages resulting from a butane flash fire which occurred while Gayle Chaney, a co-owner of defendant, was filling a butane tank. The jury failed to find that Gayle Chaney was in any way negligent. Judgment was entered for defendant. Plaintiffs have appealed. We affirm.

Plaintiffs contend the jury findings are against the great and overwhelming weight and preponderance of the evidence so as to be manifestly unjust. Plaintiffs also complain of jury misconduct.

Gayle Chaney was requested to deliver butane to the Avinger residence. Upon arrival, he parked his truck, spoke briefly with Mrs. Avinger, hooked his delivery hoses to the tank, engaged the truck pump, and commenced to fill the tank. While the tank was filling, the safety relief or pop-off valve opened, “spewed” for a short period of time, and then closed. Borne fifteen to twenty seconds later, the butane flashed. The butane tank was owned by the Aving-ers. The evidence indicates the gas was ignited from either a hot water heater or electric water pump located in a closet built on the side of the Avinger house.

In Special Issue 1, the jury failed to find that Gayle Chaney’s failure to watch the liquid gallon meter on the truck as he was pumping the butane into the Avinger tank was negligent. The jury in Special Issue 3 failed to find that Chaney’s action in overfilling (in gallons) the Avinger tank was negligent.

In considering great weight and preponderance points, we are to consider the entire record. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

[722]*722Chaney’s truck was equipped with a gallon meter. He did not watch the meter while filling the tank. Herbert Shilstone, Jr., a registered professional engineer, who had extensive experience in testing devices and materials to determine the cause of accidents, testified that when dealing with hazardous material the prudent and safe thing to do is to look at the meter on the truck in conjunction with looking at the percent gauge on the tank, to prevent overfilling the tank. Harry Thomas, an expert witness, testified the normal operator goes by his truck meter as well as the gauge on the tank. Gayle Chaney testified there was no regulation or requirement that a delivery truck be equipped with a gallon meter. Furthermore, he stated that to position the truck in order to read the gallon meter on the truck would require the truck to face the butane tank and place the engine of the truck in close proximity to the tank which would create a special hazard. Mr. C. B. Chaney, who had 26 years experience in the butane business, stated the Texas Railroad Commission rules and regulations require an operator to stand by and watch the gauge on the tank at all times. He stated they seldom ever use the gallon meter on the trucks.

The jury could reasonably conclude from the evidence the tank was overfilled and this resulted from a defective percentage float gauge even though Mrs. Avinger testified she had never had trouble with the tank. There is testimony that an acceptable practice is to watch the float percentage gauge on the tank when filling the tank. Gayle Chaney testified he intended to stop the pump when the percent gauge indicated the tank was 90% full. This is an acceptable limit. He observed nothing unusual about the way the gauge advanced before the trouble started. He testified the pop-off valve popped when the tank gauge was indicating 85%. There is evidence that after the fire, the percent gauge showed 80%.

We hold the findings of the jury to Special Issues 1 and 3 are not against the great weight and preponderance of the evidence.

The jury failed to find in Special Issues 5 and 7 that Chaney was negligent in not giving a warning of danger during the time the pop-off valve was spewing nor during the time after the pop-off valve had closed and before the butane caught fire.

Mrs. Avinger testified that when the truck arrived, she told all of the children playing in the back to go to “the front yard, now, and they all went.” At this time, Debbie Lemaster was inside the house. When the tank made a “real loud pop noise,” some of the children came running to the back yard with their hands over their ears. Mrs. Avinger then said, “You children get in the house.” At that time, Debbie “was standing there holding the screen door open for the children to go in the house.” At this time, the tank was making a “spewing sound.” The door Debbie was standing in at the back of the house was 20 feet and 3 inches from the butane tank. Mrs. Avinger testified Debbie could have easily heard her tell the other children to get in the house.

Debbie Lemaster testified that she heard a popping noise and went to the back door. She was at the back door when the children came into the house. She testified about two minutes passed from the time the pop occurred until the fire occurred.

Gayle Chaney testified that when he arrived on the premises, several children were playing in the yard and he was going to tell them to get back, but before he could, Mrs. Avinger told them to get back and go to the front yard. He stated that from the time the tank stopped spewing until the explosion occurred was 15 or 20 seconds. Chaney testified that during the time the gas was spewing, he was busy trying to remedy any possibilities of fire. He said that he heard the children holler and run when the pop-off valve released and he had no idea they had come back into the vicinity. He stated that while the tank was spewing, “I didn’t even see them. I don’t know where they was. They left.” At that time, he stated, [723]*723“They were gone, as far as I could tell. I was busy.” When the pop-off valve released and spewing started, Chaney turned off the valve at the end of the delivery hose, went to his truck, turned off the engine and the main cut-off valve. He picked up a brass hammer, returned to the tank, and tapped the pop-off valve about four times. The valve then closed and the spewing stopped. After the spewing stopped, Chaney admitted there was a tremendous danger of fire if the gas reached an ignition source. Chaney did not know the hot water heater or pump were located in the outside closet. When asked if he at that time warned anybody to stay away, he said, “As far as I knew, there was nobody there, and like I say, my back was to the house.” When asked if he looked to see if anybody was around when he started to remove the hose, Chaney said:

“A. I didn’t look for nobody . in other words, I didn’t see nobody and it was a pretty small area, so if they’d been there, I probably would have seen them. But now, as far as going and looking for nobody, no.
Q. All right, that’s what I meant. Did you glance around to see if anybody was in the immediate area of the tank?
A. I could see in the immediate area of the tank. I guess you might say yes, I guess I did, because I could see in the immediate area.
Q. All right, did you see anybody?
A. No.”

At another point, when asked if he issued a warning during the spewing, Chaney testified, “There wasn’t nobody there at that period of time when it was popping off.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hughett v. Dwyre
624 S.W.2d 401 (Court of Appeals of Texas, 1981)
Pride Transport Co., Inc. v. Hughes
591 S.W.2d 631 (Court of Appeals of Texas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
532 S.W.2d 720, 1976 Tex. App. LEXIS 2423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemaster-v-chaney-son-gas-co-texapp-1976.