Opinion
Page __
__ Cal.App.2d __ 312 P.2d 11 Augustine AMBRIZ and Titotea Vargas Ambriz, Plaintiffs and Respondents, v. PETROLANE, Ltd., a corporation, Dyer Trucking Co., a corporation, and Jack Junior Hanley, Defendants and Appellants. Civ. 5389. California Court of Appeals, Fourth District June 17, 1957Rehearing Denied July 15, 1957.
Hearing Granted Aug. 13, 1957.
[312 P.2d 12] Spray, Gould & Bowers, Los Angeles, for appellant Petrolane Ltd.
Walch & Griswold, Roger R. Walch, Hanford, for appellants Dyer Trucking Co. and Jack Junior Hanley.
Bruce Walkup, San Francisco, Edmond A. Chevalier, and Eugene L. Adams, Fresno, for respondents.
GRIFFIN, Justice.
Plaintiffs and respondents, husband and wife, brought this action against defendants and appellants for damages for their own personal injuries and for the wrongful deaths of their three children as a result of a butane explosion and fire on October 8, 1953, in one of the cabins of a farm labor camp in Corcoran, on the ranch of Philip Hansen, their employer.
Defendant and appellant Petrolane Ltd. (hereinafter refered to as Petrolane) was the supplier or distributor of the butane. Defendant and appellant Dyer Trucking Co. (hereinafter referred to as Dyer) and its driver employee, Jack Junior Hanley, were the deliverers of it. A trial without a jury resulted in a judgment for plaintiffs against all defendants, totaling $138,727.46. Defendants appealed.
A separate action was brought by these plaintiffs against Philip Hansen, owner of the premises, for the same claimed injuries and deaths, resulting in the payment by Hansen to plaintiffs of $15,000, and a dismissal of that action under a covenant not to sue.
Plaintiffs' complaint alleged generally that defendants Petrolane and Dyer were doing business in Kings County; that Hansen owned certain cabins and maintained them for his workers; that on the premises was located a butane gas tank erected by Hansen which was connected to a distributing system by gas pipe lines with outlets extending into the cabins; that on October 4, 1953, plaintiffs and their three children moved into one of these cabins; that defendant Jack Hanley, as agent of Dyer and Petrolane, on September 26, 1953, filled the tank with butane gas; that the pipe ending in plaintiffs' cabin was not capped or otherwise properly closed, permitting the escape of gas into the cabin; that Hanley and the other defendants did not make a proper inspection to see that no gas outlets were leaking; that their said carelessness in filling the gas tank, with pipes leading to an uncapped or improperly closed gas outlet in plaintiffs' cabin, proximately caused the explosion and fire therein on October 8th, resulting in the damage indicated. The answers put in issue the question of defendants' negligence. They also alleged an [312 P.2d 13] unavoidable accident and contributory negligence. The court found generally in accord with the allegations of plaintiffs' complaint.
According to the evidence, plaintiffs, a Mexican couple speaking little, if any, English, with their three children, aged 2, 5 and 7, (boy 7 years old) respectively, came to the Hansen ranch and applied for work picking cotton. They were given a job and assigned to one of the 30 rather crude unfurnished one-room wooden cabins about 12 ft. by 14 ft. in width and length, with one door and two windows. It was wired for an electric light fixture. Plaintiffs brought with them a coal-oil burner stove, one large mattress and a few other furnishings. All five slept on the mattress laid on the floor. About 12 to 18 inches above the floor and near their heads was a one-half inch galvanized gas pipe leading into the room from the main 600 gallon butane tank located a considerable distance from the cabin. Plaintiffs informed the keeper they did not intend to use the gas but only the oil stove. Near the outlet end of the gas pipe extending into the room was affixed a petcock or valve that could be turned on or off by means of a wrench. The end of the pipe was threaded to permit it to be connected with a stove or other such utility. Apparently there was no screw cap over the end of the pipe. There was a master shut-off valve near the tank which, when closed, precluded gas from traveling to the cabins. All of this equipment was on the Hansen property and was installed by him several years before. These cabins and the butane tank were only used during the picking season and remained empty and unoccupied during the rest of the year. On October 8th a few of the cabins were occupied by other workmen. Some were using gas from the main tank which had been delivered to it on September 26, 1953, which was about eight days before plaintiffs moved in and about twelve days before the explosion.
There is testimony by the caretaker of this camp and the foreman that these cabins were piped for butane about five years previously; that before and after the tank was filled this particular season they checked the outlets in this and the other cabins, both by smell and by lighting matches, and that they had no complaints from tenants about gas leakage. The caretaker said that he checked the cut-off switch in this particular cabin and that it was in a closed position and there were no leaks; that he checked it again the day after plaintiffs moved in; that he saw they were not going to use it but would use a coal oil stove; that he asked, in English, in the presence of the children and the wife, if Mr. Ambriz was going to use the butane and he said 'no'; and that he warned him not to bother the gas valve because it 'will blow you up, put you to sleep, kill you'.
The district manager for Petrolane testified he inspected the facilities at the Hansen ranch in 1951 or 1952, at the request of one of Hansen's employees; that he checked with soap suds the lines and valves for leaks in each cabin and at the tank; that he furnished a new regulator and did find about three slightly leaking valves or connections and they were repaired; that he then recommended to Hansen that the type of valves used in the cabins be replaced; that this was the only time he inspected them or was requested to do so; that the September 26, 1953 delivery of butane that was ordered by Hansen's foreman through co-defendant Dyer was the first delivery of that season and he knew this fact; that there was no agreement with Hansen to have any further or later inspections made and that the custom of the trade was that butane deliveries on a route basis such as Hansen's are made without checking the tanks or lines. He then produced a written agreement (Defendants' Exhibit B) with Dyer for delivery of butane for his company. It provided that Dyer was an 'independent contractor' and was not the agent or employee of Petrolane; that both parties agreed that Petrolane was interested only in having butane delivered to its customers [312 P.2d 14] and Petrolane 'shall have no control over' the butane trucks, the drivers thereof, or the manner and method of operation. He testified that no information or instructions were given by Petrolane to Dyer or his drivers about finding certain leaks in Hansen's lines in 1951 or 1952, or that the drivers should check for future leaks. It appears that Petrolane billed Hansen directly for the butane sold.
The driver for Dyer testified he delivered 600 gallons of butane to the tank on September 26th and had no instructions from anyone to inspect the cabins or gas lines on the Hansen property; that he had been delivering gas there for several years and never was requested to make such examination; that when the gas was ordered by the owner he filled the tank and checked everything around it, including the soap test for leaks, and he never noticed any signs or odor of escaping butane. Apparently the main valve, at the tank, had been closed by a Hansen employee and was opened the next morning by him, thus allowing the butane to be distributed to the various cabins.
Plaintiffs testified generally that there was no furniture or water in the cabin when it was assigned to them; that they did notice the gas pipe protruding into the room but never touched it; that a few days after they moved in, on October 3rd, they did notice a few flies in the cabin and a disagreeable odor, but assumed it was from the filth in the cabin; that they were not familiar with the odor of butane; that they left the doors and windows open for ventilation; and that on the afternoon of October 8th the father and the oldest child closed the doors and windows on account of the excess number of flies in the cabin, lay down on the mattress, and later arose with headaches; that in the evening plaintiff wife prepared tortillas on the oil cook stove; that they ate, turned off the stove, which burned the wick for some delayed time thereafter, and went to bed; that soon thereafter an explosion occurred resulting in the injuries indicated.
Plaintiffs claim that the 10"' crescent wrench found near the butane pipe was placed under the mattress by them each evening as a weapon for protection against possible intruders. There was considerable corroborated testimony that after the fire the pipe valve in the cabin was partially open and left bright marks indicating it had been closed again after the fire; that a small stream of fire was coming out of the end of the pipe when the fire department arrived, and that the petcock was then turned off after the discovery of this flame. It was necessary to use a wrench to open and close the valve. The wrench, found on top of the burned mattress, was so set that it just fit the valve head. It is defendants' argument, and the evidence might well have supported it, that plaintiffs or the 7-year-old child was probably playing with or experimenting with it to see if there was water piped into the house. The court rejected this contention and found that all defendants were guilty of negligence, as charged, and that plaintiffs were not guilty of contributory negligence.
There was additional testimony of an expert engineer, produced by plaintiffs, that butane gas has mixed with it a substance which produces an odor similar to rotten eggs, and that such escaping gas has a great attraction for flies; that a small leak may not be noticeable if the room is well ventilated; that the gas valve or shut-off cocks attached to the pipes in this and some of the other cabins were not designed for butane gas, and if these valves were not filled with a grease or some other such substance, when tapped at the base, it could leak to some extent; that it was the general practice of butane truck operators to warn an owner of the filling of a tank or to check and see that the main valve is closed. Another witness testified it was bad practice to leave an exposed end of such a pipe without it being capped with a metal screw cap. Another expert, testifying for the defendants, said the gas cock valve here used was of common use with butane.
[312 P.2d 15] Plaintiffs' expert further testified that when a butane tank remains empty for some period of time, air accumulates in the line, and in case of a slow leak, by refilling, it might take a week or two before the air is forced out of the leaking valve at the end of the line and the butane gas itself would later start to leak into the cabin, depending considerably on the extent of the leak; that one not acquainted with the odor of butane might not recognize it; that there are certain possible tests to discover leakage in the line that could be made by one delivering the butane without checking each cabin, i. e., by cutting out a piece of the pipe or disconnecting the line from the tank, putting in a valve and pressure gauge or monometer, and determining the leakage rate, if any, which process may take minutes or days, depending on the volume of leakage. He testified, however, that in doing so it would be necessary to obtain the consent of the owner of the line.
Plaintiffs' witness Hill, a motel operator at Lake Tahoe, testified he once was engaged in the business of distributing butane gas in that locality. He offered to testify as to the custom of a deliverer of such butane gas in that vicinity when cabins and clubs were closed for the winter months and butane was again delivered in the summer season. Objection was made to the offer of proof of custom in that district as compared to this district. It was sustained but the witness later testified, over some limited objections, that when he first filled a tank after the winter season and there was no one at the place responsible for it, he would fill the tank, shut it off from the distributing system and whenever he would later open it up he would always use a monometer or pressure gauge to check for leaks. In answer to the court's inquiry, counsel for plaintiffs stated that as to Petrolane, plaintiffs were not relying on customer usage but were relying upon some inherent duty on Petrolane apart from custom and usage. This last statement becomes important when considered in connection with a special finding and the reasoning expressed by the trial judge for attaching liability against Petrolane in an opinion sent up with the record. This opinion states in part that the truck driver, Hanley, knew this was the first delivery of the season and the tank was empty; that he took no precautions nor made any tests to determine whether or not there were any leaks in the line or any valves on or off; that he permitted gas to go into the line from the main tank and into this cabin; that Petrolane's manager, in 1951 or 1952, inspected the outfit and found three leaks in the line valves in certain undetermined cabins, apparently not this one, and recommended the valves be replaced; that he made no subsequent inspections and failed to notify Hansen as to the conditions he previously found; that Petrolane knew butane gas was a highly dangerous commodity and those engaged in that business for profit are engaged in an ultra-hazardous activity. He quoted and relied upon Luthringer v. Moore, 31 Cal.2d 489, 498, 190 P.2d 1, 7, reading:
"One who carries on an ultra-hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra-hazardous, although the utmost care is exercised to prevent the harm. * * * An activity is ultra-hazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. * * * An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who carries it on."
He found 'That at all times herein mentioned the butane gas which was sold and distributed by defendants was extremely dangerous and highly explosive; that at all times herein mentioned [312 P.2d 16] the defendants, and each of them, were engaged in an ultra-hazardous activity and business; that the sale and distribution of such butane gas is an inherently and intrinsically dangerous activity and business; that the defendant Petrolane Ltd., a corporation, as well as the other defendants, was under a duty to use care commensurate with the danger in the conduct of such activity and business, and such duty of said defendant could not be delegated to any other person.'
It would therefore appear from the quotation of this paragraph, the reference to the inherent duty of Petrolane, and the special finding quoted, that the court was attaching liability against these defendants upon the theory of ultra-hazardous activity, believing the exercise of the utmost care on their part to prevent the harm would be no defense, and that the duty to exercise such care could not be delegated. We do not believe the business in which defendants were engaged can be so classified. There were over 200 customers of such butane gas in that community, and on ranches and outlying homes not accessible to a natural gas system. This commodity has come into popular use and is a necessity in such localities. The complaint alleged certain special acts of negligence and the court found them to be true. Apparently the complaint was not predicated upon ultra-hazardous activity.
If this rule of law is adopted, all distributors of butane gas, even where public utilities are employed for its conveyance, would become liable for any injuries caused by it, even though the distributor exercised the utmost care. We do not believe the rule in Luthringer v. Moore, supra, is here applicable. That case involved an action for damages as a result of breathing hydrocyanic acid gas, a deadly poisonous gas used by defendant Moore in exterminating cockroaches by fumigation in a restaurant occupying part of a large building. Even in that case the court held that the question of whether a case is a proper one for imposing the rule of absolute or strict liability for tort without fault is one of law for the court. The same distinction is to be noted in Green v. General Petroleum Corporation, 205 Cal. 328, 270 P. 952, 60 A.L.R. 475; and Gall v. Union Ice Company, 108 Cal.App.2d 303, 239 P.2d 48, upon which plaintiffs rely. It has been held that a gas company, though they be the owners of a distributing system and under regulation of the Public Utilities Commission, are not insurers of the safety of their customers or of the general public, and their liability is not absolute. 24 Am.Jur. secs. 22 and 32, pp. 681 and 686.
In Clay v. Butane Gas Corporation, 1949, 151 Neb. 876, 39 N.W.2d 813, it was held that the rule of absolute liability is not to be imposed in such cases, and stated the general rule to be that a higher degree of care and vigilance is required in dealing with a manufactured liquefied gas than in the ordinary affairs of life and business; that one who handles such a dangerous agency must use a degree of care to prevent damage from the escaping of gas which is commensurate with the danger which it is its duty to avoid; that a gas company which does not install, own, or control the pipes or appliances in a customer's building is in no way responsible for the condition in which they are maintained, and consequently is not liable for injuries or damages caused by a leak therein of which it has no knowledge; that the rule as to the legal duty of the gas company in reference to the escape of gas from service pipes owned and controlled by others on private property, which pipes have been properly installed and tested, does not extend to thereafter making inspection, unless the gas company has knowledge of a probable defective condition in such pipes, or has knowledge of circumstances rendering it probable that gas is escaping therefrom; that while a distributor of gas is not an insurer of the safety of the consumer's premises or the personal property therein, and the law does not impose upon it the arduous duty of inspection in every case, yet when its agent has good cause to believe [312 P.2d 17] that an inspection should be made, it may be negligence not to inspect, and if so, it is liable for damages proximately caused by such negligence. The court then said the responsibility of the gas company arises from knowledge of a dangerous condition, and not by reason of the condition. If the liability of defendants was predicated solely on the theory of ultra-hazardous activity a reversal of the judgment would be imperative. The decision indicating that the duty could not be delegated is also unauthorized. The general rule is that when property is turned over by the owner to an independent contractor the owner is not liable to third persons for the negligence of the independent contractor. There are certain exceptions to this rule. Sabin v. Union Oil Company, 150 Cal.App.2d 606, 310 P.2d 685.
As we see it, the question then arising is whether the evidence would support the additional finding that, at the time butane gas was supplied to the tank by defendants, there was a dangerous condition existing, and whether defendants had knowledge of such dangerous condition, or whether a reasonable inspection to ascertain and discover such dangerous condition, if any, was required or met. Ray v. Pacific Gas & Electric Company, 3 Cal.App.2d 329, 39 P.2d 812; Ingledue v. Davidson, 102 Cal.App.2d 703, 283 P. 840; Sawyer v. Southern California Gas Company, 206 Cal. 366, 274 P. 544.
In this connection it is argued by defendants that to place the burden on them to make an inspection of gas distributing systems on their entire route of probably 100 to 200 customers, at the beginning of each season, would place on this industry, which runs into thousands of seasonal customers, an unrealistic, unnecessary and serious burden and handicap; that to make a pressure check of a multiple outlet system requires the cooperation and participation of the owner and each of his tenants whose premises are connected with the distributing line; and that the absence of tenants and inaccessible appliances present practically an insurmountable problem for such inspection.
As to claimed knowledge of Petrolane that a defective condition did exist in 1951 or 1952 in three of the cabins, without designation as to which ones, there is some testimony that at Hansen's request, Petrolane, as an accommodation, did inspect the system to the extent referred to; that at that time there was no indication that Petrolane was to be the distributing agent for that or the succeeding years. It had a competitor in that field in this same community. Several suggested corrections were indicated. Butane gas was furnished in 1951 or 1952, or both years, without any evidence of leakage or defect in the system. During these years the employees of Hansen had been fully instructed in the manner of detecting and correcting leaks and apparently inspected the cabins for this purpose. Defendants delivered butane to the tank. According to the evidence, Hansen's employees closed the valve to the distributing system before it was delivered. Hansen ordered its delivery and knew it was being delivered that day. No notice of any leaks or defects was brought to the attention of defendants. The next day Hansen's employee opened the valve to the distributing system and no leaks were indicated. After the gas valve was turned on, Hansen's employee again inspected the cabins, including this one, for leaks. Tests were made and none were discovered. There is no testimony that a test made at that time by defendants would have been different. At least there was no sufficient notice brought home to these defendants at that time calling for a greater or more extensive inspection than that made by Hansen's employees who assumed the duty of inspection after the butane had been delivered in the manner indicated. It cannot be reasonably said that the gratuitous inspection made in 1951 or 1952 and the discovery then made, was sufficient notice to defendants that this same condition persisted in September, 1953, in the cabin indicated, which would require a full inspection by them for leaks before delivering the butane to the tank on the Hansen premises in the manner indicated. Apparently the trial court did not believe the testimony of [312 P.2d 18] defendants' witnesses that the main valve had been turned off by them before delivery of the butane and turned on again by them the next day, or that proper inspection had been made and no leaks were in evidence.
There is no substantial evidence that there was a leak at that time. The great weight of the testimony is that the escaping gas developed later by virtue of some unforeseeable causes. It is true that a court is not required to believe the testimony of a witness, if untrustworthy, but the rejection of testimony does not create evidence contrary to that which is deemed untrustworthy. Disbelief does not create affirmative evidence to the contrary of that which is discredited.
In Loos v. Mountain Fuel Supply Co., 99 Utah 496, 108 P.2d 254, 257, the rule pertaining to the duties of a gas supplier is stated to be:
'A supplier of gas which does not install gas pipes or appliances on another's premises, does not own or control them, has no duty to inspect them, and has no actual knowledge of leaks or defects, is not liable for damages resulting from a gas explosion on said premises.'
Many cases are cited for this general rule including Lewis v. Southern California Gas Co., 92 Cal.App. 670, 268 P. 930. See also 23 Cal.Jur.2d 726, sec. 6.
There may be some merit to the general claim that in refilling a butane tank after it has been emptied and allowed to remain empty for several months, one who subsequently delivers butane to the tank and into the system is charged with knowledge of the natural results and the responsibility of making adequate inspection to determine whether, due to the dangerous propensities of the butane gas, it is safe to refill the tank without exposing the tenants or occupants of the premises served to the dangers which are known to him and which might reasonably result. Koch v. Southern Cities Distributing Co., 18 La.App. 664, 138 So. 178, 182; Clay v. Butane Gas Corp., 151 Neb. 876, 39 N.W.2d 813; 24 Am.Jur. 686, sec. 32.
Here, the claimed cause of the injury was a leak in one of the pipes making up the system. Defendants did not own or operate this system and had taken no part in its installation and had assumed no responsibility to keep it in repair. It does not appear to us that the evidence in this case would support a conclusion or finding that defendants, particularly defendants Hanley and Dyer, had notice of the claimed leak or should have had knowledge of it at the time the delivery was made or within any reasonable time thereafter, so as to avoid the accident. There was no substantial evidence of a leak at the time the gas was delivered or during the five-day period prior to the occupancy of the cabin by plaintiffs. In fact, there was no evidence of any leak after that time except the inference that it may have subsequently started leaking because a few flies assembled in the cabin a few days before the explosion and many were noticed about 11 a. m. on October 8th, the day of the explosion, plus the additional evidence of some peculiar odor resembling human vomit, and the possibility that air may have preceded the arrival of the butane gas in the pipeline. Apparently defendants had no notice of this claimed leak in the pipe in the cabin. Plaintiffs cooked, lived in the cabin during this period, and slept with their heads within a few feet of the pipe without noticing any leak or other evidence of it. How, then, would defendants be chargeable with notice, as found by the court, that such a leak existed on September 26th, the date the butane was delivered?
The possibility of the owner's liability has been fairly well established. He selected the materials, installed the plant on his own property, employed a caretaker whose duty it was to test and properly maintain the system for the benefit of his tenants. A separate action for these same claimed damages was first instituted against the owner. Plaintiffs elected to settle with him for $15,000. This was their choice. No sufficient reason is shown or evidence produced indicating [312 P.2d 19] that defendants should also share in that claimed liability.
Judgment reversed.
BARNARD, P. J., and MUSSELL, J., concur.