Shaha v. Frey

GRIFFIN, J. Plaintiffs and appellants Charles L. Shaha and wife brought this action against defendants and respondents Ben E. Frey, Frey Industries et al. for claimed negligence resulting in property damage to plaintiffs. By way of defense, in the answer, defendants claim no negligence on their part, contributory negligence on the part of plaintiffs, and that the fire resulting in the damage claimed was unavoidable.

The evidence shows that on September 17, 1951, plaintiffs owned a dwelling house near Perris, and were using butane type fuel for cooking and water heating. A stationary tank located on plaintiffs’ property was “right up against” and practically within 3 feet of the dwelling. The water heater [511]was located on the front porch about 8 feet from the tank. The stove was in the kitchen which was also near the tank. Defendant Frey had been supplying fuel to plaintiffs for about nine months. On the day in question he was in the process of transferring gas from a tank truck to this stationary tank of plaintiffs. This stationary tank was owned by plaintiffs. Another company had been serving it prior to the time defendant started to do so.

Defendant testified he asked plaintiff Mr. Shaha to move the tank away from the house at the time he started serving it, because it would be safer; that plaintiff replied that he did not want to move it because it would ruin his flower bed. The tank had a safety valve on it to release gas and to relieve pressure in the tank when the pressure was too high or the tank was too full, or when the temperature became too warm. On this day the temperature was about 100 degrees. Defendant stopped his truck about 20 feet from the tank, went over and “gauged” it, and started the pump by means of the truck motor. The fill valve which operates like a bicycle pump on a tube was stuck, and while defendant was standing t-heré the safety valve started blowing off vapor gas. Defendant testified that he never did attach the fill hose to this tank; that he went to the truck to shut off the motor and returned, and while he was standing near the stationary tank the escaping gas caught on fire and the house burned to the ground. Defendant was burned on the face but was able to drive his truck away from the scene for safety purposes.

Plaintiff’s testimony was that when defendant first came to service the tank, nine months before, he asked defendant if they should turn the fire out in the water heater and stoves when he started to fill the tanks and that defendant said “No”, that it did not make any difference; that he never did discuss with defendant anything about moving his stationary tank away from the house; that on the afternoon of the fire he and his wife were painting in the house; that he heard the noise of escaping gas and went outside and found that his house was burning.