Supplemental Opinion on Petition for Rehearing delivered October 9, 1978
John A. Fogleman, Justice.On petition for rehearing, appellant asserts that we erred in holding that the evidence was sufficient to show that the delivery of propane gas is an ultrahazardous activity. We should clarify the opinion in that respect. Harry Burns, Director named by the Liquefied Petroleum Gas Board, testified that propane gas is an inherently dangerous, highly flammable product that requires skill in handling. He also testified that the likelihood of injury or damages is greatly reduced if the utmost care is used. We reiterate that this testimony tends to show that the risks of the activity in which appellant was engaged cannot be eliminated by the use of the utmost care. This was sufficient to present a jury question on this element of the definition of an ultrahazardous activity.
Appellant also asserts that the burden of proving that the delivery of propane gas is not a matter of common usage was not met by appellee. In the course of our opinion we remarked that there was no proof that it was a matter of common usage. We treated the matter as appellant argued it, however, and did not search the record for evidence on this point. Appellant argued that propane gas was a substance of common usage, so the second element of the definition of ultrahazardous activity has not been met. Appellant also argued that, “[s]ince the undisputed evidence in the record below establishes that delivery of propane and butane are matters of common occurrence, the same rationale would preclude submission of this case to the jury on the theory of absolute liability.” The thrust of appellant’s argument is covered by these two statements. The first contention was adequately treated in our original opinion. The second is based upon the testimony of Carlton Terry that he had been delivering gas for 16 years, making from 10 to 30 deliveries per day and that of Jerry Hatfield that he had seen the delivery of butane and propane gas many times. Both were employees of Butane Gas of Hope, a company engaged in the business of delivering propane gas to retail customers. The regular duty of both these employees was to deliver gas. This testimony on their part is not really substantial evidence that delivery of propane gas is a matter of common usage.
Burns testified that the personnel of a company licensed as a dealer in butane and propane gas are examined by the Liquefied Petroleum Gas Board. As a matter of fact, both Hatfield and Terry were licensed by the board to carry on the loading and unloading of these fuels. These licenses, or “certificates of competency,” are reviewed annually. See Ark. Stat. Ann. § 53-723 (A) (6) and (B) (Repl. 1971). There is a State Liquefied Petroleum Gas Code covering the storage and handling of liquefied petroleum gases. Ark. Stat. Ann. § 53-701 et seq. The requirements of the Liquefied Petroleum Gas Board Act have been taken to be directed primarily to public safety. Gray’s Butane Wholesale, Inc. v. Arkansas Liquefied Petroleum Gas Board, 250 Ark. 69, 463 S.W. 2d 639; Summers Appliance Co. v. George’s Gas Co., 244 Ark. 113, 424 S.W. 2d 171.
We did not mean to say that the burden of proving that the activity was one of common usage rested upon appellant. The burden of proof that it was not one of common usage was on appellee, in spite of the fact that this required her to make negative proof. Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W. 2d 773. The “burden of evidence,” or of “going forward,” is more easily discharged when the proposition is a negative one than when it is a positive one, and the burden of evidence will shift when the evidence, even though circumstantial, renders probable the existence of the negative fact. Higgins v. Salewsky, 17 Wash. App. 207, 562 P. 2d 655 (1977); In re Sandusky’s Estate, 321 Ill. App. 1, 52 N.E. 2d 285 (1943); Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525 (1893); Vigus v. O’Bannon, 118 Ill. 334, 8 N.E. 778 (1886). The rule is succinctly stated at p. 338, 30 Am. Jur. 2d, Evidence, § 1163, viz:
* * * Full and conclusive proof is not required where a party has the burden of proving a negative, but it is necessary that the proof be at least sufficient to render the existence of the negative probable, or to create a fair and reasonable presumption of the negative until the contrary is shown.
We consider the evidence in this case, as to requirements for handling the gas, to be sufficient to have shifted to appellant the burden of producing evidence that the delivery of propane gas was a matter of common usage. As we have pointed out, there was no substantial evidence of this fact.
The petition for rehearing is denied.