Appeals, Nos. 16 and 17, Jan. T., 1954, from judgment of Court of Common Pleas of Franklin County, Oct. T., 1950, No. 235, in case of Lillian B. Pryor and First National Bank and Trust Company in Waynesboro, Trustees under Will of Albert R. Pryor v. Chambersburg Oil and Gas Company et al. Judgment affirmed.
John McD. Sharpe, with him E. M. Biddle, Jr., and Charles H. Davison, for appellant.
Edwin D. Strite, with him LeRoy S. Maxwell, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiffs instituted this action in trespass against the Chambersburg Oil and Gas Company, the local distributor in Chambersburg, Pennsylvania of Tydol petroleum products, to recover damages caused by a gasoline explosion in a filling station operated by the plaintiffs, as executors and trustees under the will of Albert R. Pryor. The original defendant brought in Charles A. Pryor and Ralph Paull as additional defendants. They were respectively the manager of this local filling station and the general manager of the several places of business conducted by the plaintiffs. Pryor and Paull then brought upon the record as second additional defendant Ralph Kell, Sr., the original defendant's general manager, claiming that he and the Chambersburg Oil and Gas Company were alone liable to the plaintiffs.
A verdict was rendered for the plaintiffs against the Chambersburg Company and in favor of the additional defendants and the second additional defendant. Motions for a new trial and judgment non obstante veredicto filed by Chambersburg were overruled by the court below and the present appeal is taken from the judgment entered for plaintiffs.
Considering first the motion for judgment n.o.v., the evidence taken in the light most favorable to the plaintiffs as follows: Under a verbal agreement with Albert R. Pryor, and after his death with the plaintiffs, the defendant corporation installed and maintained on plaintiffs' property its own gasoline tanks and pumps. In consideration thereof, Albert Pryor and thereafter the plaintiffs agreed to sell the defendant's gasoline and oil exclusively. In the early evening of June 25, 1948, Charles Pryor, the plaintiffs' local manager, notified the defendant, through its manager, Kell, of the presence of gas fumes in the cellar of the service station. That same evening Kell arrived at the scene and also detected the aroma of gas and observed a dark oily fluid floating on some water in the basement. He returned again the following day and inspected two other cellars in the nearby vicinity, one of them a service station, but found the same condition did not exist in these buildings. He inquired of Pryor if he was losing any gas from the underground storage tanks, to which Pryor replied, "... apparently they were all right as far as he knew.". Kell proceeded to examine the gasoline pumps on plaintiffs' property and found a leak in an ell of a pipe leading from a 550 gallon ethyl tank which caused a couple of gallons loss each time the pump was used in dispensing gas. Two pumps were located on the plaintiffs' premises, one of which dispensed straight gasoline and was connected to underground tank with 1,000 gallon capacity situated about 15 feet from the wall of the cellar. The other contained ethyl or high test gasoline and this was connected to two smaller tanks with a capacity of 550 gallons each, about 25 feet from the cellar. The ell was immediately repaired but no inspection was made of the straight tank at that time.
It being evident after a couple of days that the previous condition had in no way abated and was growing steadily worse, the parties decided on June 29th to test all tanks by taking meter readings at both pumps. This test revealed an apparent loss of a small quantity of straight gas which the parties felt might have been caused by a misreading of the figures on the totalizer. On July 1st the president of the defendant company. Mr. Jannone, directed Kell to conduct a second test on the straight tank by a more simplified method, whereupon it was found that during the evening the tank had lost 125 gallons of gasoline. Mr. Pryor informed Kell he wanted the situation remedied at once, as a result of which Kell emptied all gasoline from the straight tank on July 3rd, but he informed Pryor that because of the ensuing holiday, the shortage of manpower would prevent the actual removal of the tank until July 6th.
When the tank was eventually removed on the morning of the 6th, it was determined that there were several small holes in the tank, apparently brought about by rusting. Certain gas and water which had accumulated around the tank prior to its removal flowed from the surrounding soil into the excavation. This necessitated washing and ventilating the excavation before the new tank was installed on July 7th. Following the installation of the new tank, the attendant in charge of the station during Mr. Pryor's holiday vacation asked Kell what he should do to clear the fumes that still persisted in the basement. In compliance with Kell's advice, the attendant washed down the cellar walls and sprayed them with a fire extinguisher fluid which tended ...