Rabb v. Coleman

469 S.W.2d 384, 14 Tex. Sup. Ct. J. 440, 1971 Tex. LEXIS 242
CourtTexas Supreme Court
DecidedJuly 7, 1971
DocketB-2505
StatusPublished
Cited by29 cases

This text of 469 S.W.2d 384 (Rabb v. Coleman) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rabb v. Coleman, 469 S.W.2d 384, 14 Tex. Sup. Ct. J. 440, 1971 Tex. LEXIS 242 (Tex. 1971).

Opinions

DENTON, Justice.

Hazel Veony Coleman, individually and as next friend of her minor son, Allen Scott Coleman, brought this suit against Fletcher Rabb d/b/a Vapo Gas and Appliance Co. and his employee, Les Trexler, for the death of Mike Coleman, their husband and father respectively. Coleman’s death occurred as a result of the escape and explosion of butane and propane gas during a routine tank servicing operation at the family residence of the deceased. The trial court rendered judgment for the defendants below after a jury trial. The court of civil appeals reversed and remanded, holding the defense of volenti non fit injuria was improperly submitted. 461 S.W.2d 431. We reverse and remand to that court.

The accident occurred on plaintiff’s premises. Defendant Rabb was the owner of Vapo Gas and Appliance Company, a butane and propane liquid petroleum gas dealership. Defendant Trexler drove one of Rabb’s trucks used for delivering the fuels to customers. The Colemans had called Trexler and requested that he come fill the butane tank which provided cooking and heating fuel for their home. The tank was approximately ten feet from the back door of the Coleman house. The tank proper was beneath the surface of the ground with only the vent, safety pop-off valve, pressure gauge and refill connections exposed. The safety pop-off valve was set to open when pressure in the tank exceeded eighty pounds per square inch.

When Trexler arrived he connected the truck’s filler and return flow hoses to the tank and began pumping a mixture of butane and propane. Although their exact locations throughout the period in question are not clear by the record, Mr. and Mrs. Coleman, their son, Allen, and, of course, Trexler observed the refilling operation. During what had appeared to be routine procedures, the pop-off valve suddenly opened and began releasing butane gas with a loud noise. Mrs. Coleman said she retreated into the house, Allen said he ran around to the side of the house and called his dog, Trexler disconnected the hoses, and Mr. Coleman continued standing near the house. After the gas had vented into the air for about one and one-half minutes, it was ignited by an unknown cause and both Trexler and Mr. Coleman were burned. Mr. Coleman died ten days later as a result of the burns.

The suit was tried before a jury which found Trexler put gas in the tank containing a greater amount of propane than a person of ordinary prudence would have done under the same or similar circumstances, and that such act was a proximate cause of the explosion. Defendants failed to obtain favorable findings on contributory negligence and unavoidable accident issues but were successful with the defense of volenti non fit injuria:

Special Issue No. 11:
Do you find from a preponderance of the evidence that prior to the explosion in question a perilous condition existed as a proximate result of the gas escaping from the pop-off valve, on the premises in question?
Answer “yes” or “no.”
ANSWER: Yes
If you have answered the foregoing Special Issue No. 11 “yes,” but not oth[386]*386erwise, then answer the following Special Issue:
Special Issue No. 12:
Do you find from a preponderance of the evidence that Mike Coleman, deceased, knew of the perilous condition on the premises in question ?
Answer “yes” or “no.”
ANSWER: Yes
If you have answered the foregoing Special Issue No. 12 “yes,” but not otherwise, then answer the following question :
Special Issue No. 13:
Do you find from a preponderance of the evidence that Mike Coleman, deceased, realized that he was in a dangerous position due to such peril, if any, as inquired about in Special Issue No. 12?
Answer “yes” or “no.”
ANSWER: Yes
If you have answered the foregoing Special Issue No. 13 “yes,” but not otherwise, then answer the following Special Issue:
Special Issue No. 14:
Do you find from a preponderance of the evidence that Mike Coleman, deceased, voluntarily exposed himself to such dangers as existed at the time and on the occasion in question?
Answer “yes” or “no.”
ANSWER: Yes

From a take nothing judgment Mrs. Coleman appealed urging that the volenti defense was not applicable and that the issues were improperly submitted, lacked evi-dentiary support and commented upon the weight of the evidence. The court of civil appeals concluded that the issue regarding the perilous condition was a general inquiry which did not achieve the purpose of determining if Coleman knew, realized and exposed himself to the specific danger which caused his death. We do not reach the same conclusion.

Respondent has argued in all courts that the volenti doctrine was not applicable to this case. The primary thrust of that argument in this court is based on the legal relationship of Les Trexler and Mike Coleman at the time of the accident. Respondent points out that Coleman was not on the premises by license or invitation of defendants, but that Coleman was there by right. It was his home and he was entitled to be there without regard to petitioner’s consent. Citing Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963), and Harvey v. Seale, 362 S.W.2d 310 (Tex.Sup.1962), she contends that the plaintiffs in those cases were owed a degree of care similar to that owed to invitees because they were on premises as a matter of right. We agree with the general premise of this argument and think the same degree of care was due Mike Coleman and his family. The premise does not lead us to the same conclusion, however. The common law has limited the liability of landowner-occupiers in varying degrees depending upon the beneficial relationships between the parties involved, but this preferred position is not to be the basis for transferring responsibility for damages or injuries caused by the landowners-occupier’s own conduct. The fact that one owns or occupies land does not necessarily create in him the right to expose himself voluntarily to a danger which he knows and appreciates and thereby impose liability for damages on another on the land by his consent.

In Hernandez and Harvey the defendants tried to avoid liability by the traditional “no duty” concept but the plaintiffs successfully negated that contention upon showing that they were rightfully on the land notwithstanding the defendants’ consent. Assuming evidence to support Hernandez’ knowledge, appreciation and voluntary exposure to the danger, volenti would have been a defense. Volenti is[387]*387sues were submitted but the jury found against defendant Heldenfels. We said there was evidence to support the jury’s answers to the issues, not that volenti could not be invoked against a plaintiff on the property by right. In Harvey v.

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Bluebook (online)
469 S.W.2d 384, 14 Tex. Sup. Ct. J. 440, 1971 Tex. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rabb-v-coleman-tex-1971.