Harding v. H. F. Johnson, Inc. , 126 Mont. 70 ( 1952 )

MB. JUSTICE ANGSTMAN:

This is an action to recover damages caused by a fire. The property involved consisted of a building and its contents used for a garage and residence situated in West Yellowstone, Montana. The building and contents were owned by plaintiffs Hardings on November 27, 1948, at the time of the fire. The plaintiff insurance companies partially insured the building °"d contents and have each paid the extent of the loss covered by their policy and have been subrogated to the rights of the Hardings to the extent of their payments. The action was originally brought against the Carter Oil Company and IT. F. Johnson, Inc. The jury found in favor of the Carter Oil Company and found in favor of plaintiffs and against H. F. Johnson, Inc. The defendant H. F. Johnson, Inc. moved for a new trial which was denied and it has appealed from the judgment entered against it on the verdict in the sum of $28,000.

Defendant H. F. Johnson, Inc. is a common carrier of petroleum products and on November 27, 1948, was engaged as such in delivering fuel oil and gasoline to the Harding garage at West Yellowstone when the fire occurred. Delivery was made by means of a truck and trailer. On that day defendant TI. F. Johnson, Inc. through its driver Calvin Dailey had delivered and unloaded 5,200 gallons of fuel oil and 1,500 gallons of regular gasoline and had nearly completed the delivery of 500 gallons of Ethyl gasoline when the fire started. The petroleum products were delivered in underground tanks situated under the garage part of the building in question. There were intake pipes to these tanks located outside of the building. From each tank there was also a vent pipe which ran from the tank to the outside of the building and up the outside of the wall to permit the escape of fumes. In front of the garage on the south side there was a 14-foot door. The garage floor consisted of cement which extended out beyond the door about 5 feet forming an apron. The floor of the garage sloped to a drain or sump near the north wall in about the center of the garage. Mr. Dailey who delivered the petroleum products testified he was told by defendant Harding when he arrived at the service station on the morning of November 27th where to put the gasoline and oil but this was denied by Harding. In the process of delivering the regular gasoline Mr. Dailey stated that he screwed the delivery hose onto the intake pipe and noticed it was leaking. He said he thereupon took his pipe wrench and gave the coupling a couple of turns and stopped the leakage. The witness Hall on behalf of the plaintiff testified that the leaking gasoline ran into the garage and that there was about ten gallons of it and when he noticed the leaking gasoline he went out and told Mr. Dailey that, “We’re losing a lot of gas, and is there any chance of stopping it”. He said he walked through the gas on the floor of the garage and then after speaking to Mr. Dailey about it he went to the post office without cleaning up the gas or doing anything else in connection with it. He said too that he observed gasoline escaping freely between the hose and the intake pipe and nothing was done to stop the flow while he was there. Mr. Dailey testified that what gasoline escaped from the pipe before he tightened the coupling sank into the snow and ice around the fill pipe. It appears that Dailey was never in the garage and hence was in no position to dispute the testimony of Hall that the gasoline flowed into the garage.

The evidence is not clear as to just where the fire started. The plaintiffs take the position that the circumstances indicate that it started on the outside of the garage. Witnesses for the defendant, on the other hand, tesitfied to circumstances which would justify a finding that the fire started on the inside of the garage. The evidence does not indicate just what caused the gasoline to ignite. Evidence offered by plaintiffs was to the effect that the stove in the garage had no fire in it on the morning in question and that there was no machinery in operation. Plaintiffs count strongly upon the circumstance that the defendant in delivering the gasoline allowed the motor of the truck to idle in operating a pump to increase the speed of the flow of gasoline and thereby caused a condition likely to produce static electricity. They also contend that the truck and trailer were not equipped with static chains which touched the ground. Defendant points out that if the chains were not touching the ground that fact was and is immaterial here since the truck and trailer were actually grounded by a sealing chain. It contends also that the fact that Mr. Dailey had stepped on and off the truck a number of times, static accumulations, if any, were thereby grounded.

When the complaint was first filed it contained allegations to the effect that the defendants in disregard of their duty “continued to transfer said gasoline and oil without first cleaning the gasoline and oil from said apron and floor with the result that a spark of fire flew from said truck striking the gasoline and oil on said floor and igniting it and the resulting fire spread and continued to burn until the said building and contents were destroyed as herein alleged. Plaintiffs further' allege that what caused said spark to form is to them unknown. ’ ’ At the trial the complaint was amended and the foregoing allegations were eliminated and in lieu thereof plaintiffs alleged that defendant “carelessly and negligently continued to transfer said gasoline and oil without first clearing the accumulated gas and oil from said apron and floor with the result that the defendants negligently caused the gas and oil on said floor to become ignited, resulting in a fire which spread and continued to spread until said building and contents were destroyed as herein alleged. That at the time said gasoline and oil was being delivered as aforesaid, the defendants, their agents and servants, were in the sole and exclusive charge of such delivery and had complete and exclusive supervision, control and management of all operations and work done in connection with such delivery of said gasoline and oil to said Harding’s Oval-E Service.’’

It will be noted that the complaint as amended seeks recovery under the doctrine of res ipsa loquitur. Whether or not this doctrine is applicable to the facts in this case is the principal question presented by the appeal. Defendant contends that the doctrine is not applicable because the fire started in the garage and that defendant did not have any control over or access to the garage and had no knowledge as to what caused the fire in the garage. Plaintiffs’ view is that the fire started outside the garage but that the doctrine has application no matter where the fire started.

The court held that the doctrine has application and over objection gave its offered instruction No. 1, reading as follows: “You are instructed that from the happening of the fire involved in this ease, as established by the evidence, there arises an inference that the proximate cause of the fire was some negligent conduct on the part of the defendants. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiffs. Therefore, yon should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that they did, in fact, exercise ordinary care and diligence or that the fire occurred without being proximately caused by any failure of duty on their part.”

The court was right in applying the doctrine. It is clear from the evidence that the cause of the fire was the gasoline which was allowed to escape. Without it the fire would not have occurred. Just where the spark came from to ignite the gasoline is unimportant. Defendant had the exclusive control of the pipes and hose designed to convey the gasoline into the tank. Gasoline is highly inflammable and gives off fumes which are easily ignited. Those handling gasoline are chargeable with knowledge of its inflammable character and must keep it under control and in confinement.

This case is comparable to that of Lober v. Kansas City, Mo. Sup., 74 S. W. (2d) 815, 819, where the court held the doctrine of res ipsa loquitur had application to a situation where the city allowed water to escape into the premises of another. The court in that case, after stating the tests to be applied in determining whether the doctrine of res ipsa loquitur applies, said: “Applying these tests to the situation in this case, it is clearly one for the application of the rule of res ipsa loquitur. When the defendant brought to the solidly built-up and much-used street in question as dangerous an element as water under 75 to 100 pounds pressure, it was up to the city to see to it that such water was under control and confined to the pipes and appliances provided for that purpose. To allow it to escape without control was highly dangerous, and speaks negligence of those in charge. This hydrant and the water mains with which it was connected was eoncededly under the sole and exclusive control of the defendant.”

What the court said with reference to oil in General Accident Fire & Life Ins. Corp. v. Hanley Oil Co., 321 Mass. 72, 72 N. E. (2d) 1, 2, 171 A. L. R. 497, applies to the gasoline in question here. The court in that case said: “Its presence in quantity on the floor was in itself a continuing agency for harm which alone could, and in fact did, operate to achieve damage to the house.”

Defendant relies, among other cases, on that of Starks Food Markets v. El Dorado Refining Co., 156 Kan. 577, 134 Pac. (2d) 1102, 1104. There the question arose on the sufficiency of the complaint to bring the case within the doctrine of res ipsa loquitur. There was no allegation that defendant allowed gasoline to escape as here. The complaint merely alleged that while defendant’s truck driver was delivering gasoline into a portable tank of the garage tenant the driver of the truck “negligently and carelessly caused, allowed, suffered and permitted the ignition of gasoline and a fire in and about said tank truck and portable tank.” The court in holding that the doctrine had no application in that case said: “However, giving to the allegations of the amended petition a liberal interpretation, it is apparent there is no allegation that the defendants were in charge of or had any control of the portable tank or where it sat inside the garage. The petition is silent about the location of the receiving portable tank, or who determined or controlled it, and about the situation in the garage. We do not know from the petition whether there were gas or electric motors being operated in the garage, whether its doors were open or closed, whether there was any fire to heat the garage, whether it was free from explosive fumes or vapors, or what the situation was except that in making delivery the defendants were in charge of their tank truck and its contents. If on trial the facts alleged were all that were shown, the trier of the fact could only indulge in conjecture as to the cause of the fire. In such case the doctrine of res ipsa loquitur should not be.applied.”

We do not regard that ease as persuasive here, where it is alleged and proved that defendant allowed and permitted gasoline to escape from the hose and pipes which were in its exclusive control.

The same case under a different complaint came before the court in Bruening v. El Dorado Refining Co., D. C., 53 F. Supp. 356, 357. The complaint there considered, alleged that the truck driver who was making delivery of the gasoline ‘ ‘ carelessly and negligently caused or allowed gasoline to be spilled, or to get out of said appliances onto said wooden floor on the west end of said concrete washrack and of a quantity to be dangerous if, for any reason, it was caused to ignite or if in handling or in removing said nozzle from said portable tank or dropping it, a spark was caused so as to set said gasoline on the floor or on or about said tanks on fire; or if such gasoline, or fumes from it, went down the walls, studding, or supports of said washrack and became ignited by the fire in said furnace; that said gasoline so spilled or so caused or allowed to get out of said appliances onto the floor was of such a quantity that it would be extremely dangerous and cause a hazardous and consuming fire if ignited from any reason or cause, and of such quantity as to run down between the said washrack and floor and down the walls, studding and posts supporting said wash-rack. ’ ’

The court in holding that the doctrine of res ipsa loquitur was inapplicable to the facts there pleaded said: “It can hardly be said that the tanker was in any way involved in the occurrence. It had been used to transport the oil into the garage. While there the operator or driver undertook to siphon gasoline from the tanker into portable tanks. The portable tanks were under the control of the garage owners. It is charged that the operator was negligent in spilling gasoline on the floor in making transfer or delivery through a hose. Nowhere did complainants assert that the instrumentalities used were unsafe or defective. According to the complaints it was the carelessness of the operator or driver that caused the spilling of the gasoline on the floor. It should be stated, moreover, that according to the law the rule of res ipsa loquitur ‘cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed.’ 45 C. J. p. 1211, Section 778.”

Here the circumstance was proved that the gasoline was leaking from the hose connection which was under the control of defendant and' there was thus no occasion to indulge in a presumption as to' where the leaking gasoline came from and it is not a matter of conjecture whether there was negligence in permitting the escape of the gasoline. Compare Robert R. Walker, Inc., v. Burgdorf, Tex. Sup., 244 S. W. (2d) 506.

The case of Bruchis v. Victory Oil Co., 179 La. 242, 153 So. 828, is relied on, but there the fire started before any gasoline was spilled from defendant’s truck. The issue turned upon the question whether there was negligence on the part of defendant in allowing gasoline to escape after the fire started in sufficient quantity to cause the spread of the fire to plaintiff’s premises and whether the court could say that such negligence was a contributing factor leading to plaintiff’s loss. The court answered this question in the negative.

In a case such as this where defendant allowed gasoline to escape into the garage of plaintiff, we are impressed with the statement of the court in Standard Oil Co. of New York v. R. L. Pitcher Co., 1 Cir., 289 F. 678, 683, as follows: “It was not necessary that the plaintiffs show that a static spark was actually produced; but it was sufficient if conditions and circumstances were shown from which the inference could be reasonably drawn that a static spark was produced. * * * Circumstances and conditions having been shown which, if the testimony in regard to them were believed by the jury, would furnish ground for a reasonable inference that the gasoline vapor was ignited by an electric spark, generated as claimed by the plaintiffs, it cannot be said that the jury were forced to base their conelusions upon inferences drawn from other inferences, instead of proven facts.” And see Pure Oil Co. v. Chicago, etc., R. Co., 56 Mont. 266, 185 Pac. 150, where it was held that the origin of fire may be established by inferences drawn from slight circumstantial evidence. Nor is the result affected by the fact that the court instructed the jury: “* * * that the spilling of gasoline in the open air, standing alone, is no evidence of negligence.” Spilling of gasoline in the open air is quite different from spilling it at a place where it runs into the premises owned and occupied by another. Nor is it affected by the fact that an instruction was given to the effect that defendant was under no duty to inspect the premises under which the storage tanks were located. Obviously there would be no such duty until and unless defendant spilled gasoline which was likely to flow into the premises under which the tanks were located.

We think too that this case is distinguishable from those where it is known that the act of a third person in lighting a match in a place where the danger was known to exist was held to be the proximate cause of the fire as illustrated by the cases of Globe & Rutgers Fire Insurance Co. v. Standard Oil Co. of Louisiana, 158 La. 763, 104 So. 707; and Staff v. Montana Petroleum Co., 88 Mont. 145, 291 Pac. 1042.

The case of Gerald v. Standard Oil Company of Louisiana, 204 La. 690, 16 So. (2d) 233, has similar features. In that ease the three defendants were Traynor, Coca-Cola Bottling Co., Ltd. and Standard Oil Company. Traynor owned the building in which plaintiff lived as a tenant. In part of the building Traynor operated a filling station. While defendant Standard Oil Company was unloading gasoline from a tank truck plaintiff in his sleeping room struck a match causing an explosion and injuries to him and his wife. The defendant Coca-Cola Company was charged with negligence in maintaining advertising signs on the top of the building preventing the diffusion of gas fumes. Traynor was charged with negligence in the manner of the construction of vent pipes and the Standard Oil Company was charged with negligence in delivering an inherently dangerous and inflammable liquid without inspecting the entire premises. The court of appeals held that a good cause of action was stated against the Standard Oil Company under the doctrine of res ipsa loquitur notwithstanding it had no control over the premises where the explosion occurred and ordered the case tried on the merits as to it, and this was affirmed by the supreme court.

In Loos v. Mountain Fuel Supply Co., 99 Utah 496, 108 Pac. (2d) 254, the court held that the doctrine of res ipsa loquitur has application to a situation where gas was permitted to escape on premises under the control of the landlord causing injury to a tenant.

The circumstance that the origin of the spark that caused the fire is not definitely known is not material. Tyreco Refining Co. v. Cook, Tex. Civ. App., 110 S. W. (2d) 219; Welch v. Cooke Chevrolet Co., 314 Ky. 634, 236 S. W. (2d) 690.

“Direct evidence as to the cause of the ignition of gas is not necessary in order to establish the liability of a gas company for damages resulting from an explosion of gas.” Note in 25 A. L. R. 293. The same is true of the ignition of the gasoline here.

Contention is made that court’s offered instruction No. 1 was erroneous in that it deprived defendant of the benefit of claiming contributory negligence of plaintiff as the proximate cause of the fire. We do not so construe that instruction. The latter part of the instruction permitted defendant to show its freedom from negligence or that plaintiff’s contributory negligence or the negligence of a third person was the proximate, cause of the fire. The instruction was taken from California Jury Instructions, Third Rev. Ed., No. 206-B, page 321, and has been approved in cases where the doctrine of res ipsa loquitur is applicable. Dieterle v. Yellow Cab Co., 53 Cal. App. (2d) 691, 128 Pac. (2d) 132. Instructions covering contributory negligence were given and the question of contributory negligence was not withdrawn from the jury by the instruction in question. Compare Welch v. Sears Roebuck & Co., 96 Cal. App. (2d) 553, 215 Pac. (2d) 796. The evidence showing as it does that there was no fire in the stove and no machinery in operation in the garage the question of contributory negligence was one for the jury.

Complaint is made that the court instructed the jury to the effect that plaintiffs are not required to show particularly what the specific act of negligence was which produced the accident, but are only required to show that the accident was one which would not ordinarily occur had reasonable or ordinary care been employed. The law embodied in this instruction has been approved by this court in a case where the doctrine of res ipsa loquitur is applicable. Maki v. Murray Hospital, 91 Mont. 251, 7 Pac. (2d) 228.

Defendant predicates error in the giving of instruction No. 16 reading: “You are instructed that when the thing which causes the injury is shown to be under thé management of the Defendants, and the accident is such, as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by 'the defendants, that the accident arose from want of ordinary care.”

This instruction was a statement of the law as announced in the Maki Case, supra.

Defendant contends that the court erred in not giving its offered instruction No. 15 reading: “You are instructed that unless the defendants had superior knowledge of any dangerous condition, if any, which existed immediately prior to and at the time of the fire, your verdict must be for the defendants and against the plaintiffs.”

The court did not err in refusing to give this offered instruction. The superior knowledge is imputed to defendant as a matter of law if it had control of the instrumentality causing the damage and there was nothing for the jury to consider in that connection. This does not mean that it. should have superior knowledge of where the spark came from that ignited the gasoline. Its negligence follows if it permitted gasoline to escape from its pipes (which were in its control) and come into a place where it might be ignited. For this same reason the court properly refused defendant’s offered instructions No. 8 and 8-A.

Were we to hold that the doctrine of res ipsa loquitur is inapplicable we fail to see how defendant has been prejudiced by instructions on the subject. All that the instructions did in substance was to advise the jury that the facts warrant an inference of negligence on the part of defendant. The undisputed facts justified an instruction that the driver of defendant Johnson, Inc. was negligent as a matter of law in permitting such a highly inflammable commodity as gasoline to escape at a place where it was likely to and did run into property of another. Defendant may not complain of an instruction more favorable to it than the facts and law warranted. Compare, Gonzalez v. Nichols, 110 Cal. App. 738, 294 Pac. 758; Gerdes v. Pacific Gas & Elec. Co., 219 Cal. 459, 27 Pac. (2d) 365, 90 A. L. R. 1071; and Edwards v. Gullick, 213 Cal. 86, 1 Pac. (2d) 11.

Defendant complains of the count’s action in refusing other instructions offered by it. We have considered those specifications of error but find no reversible error in refusing to give them. Some were covered by other instructions given and others were objectionable as not being a correct statement of the law applicable.

The next assignment of error is predicated upon the giving over defendant’s objection of an instruction on damages. The instruction lists 85 items with a statement of the maximum market value of each item. To illustrate: Typewriter — Maximum Market Value $100. It is contended that there was no competent evidence of market value.

Harding testified as to the value of the property, real and personal. The owner of property is a competent witness to estimate its worth. 3 Wigmore on Evidence, 3rd Ed., Sec. 716, p. 48; Klind v. Valley County Bank of Hinsdale, 69 Mont. 386, 222 Pac. 439; Smith v. Armstrong, 118 Mont. 290, 166 Pac. (2d) 793.

The next contention is that there was no evidence that would permit an award for profits from loss of use of the property which was specifically authorized by the instruction. The record does not show that any award was made for loss of anticipated profits. The jury returned a verdict for $28,000. There was evidence supporting an award for that amount and more for the destruction of the building and contents without allowing anything for loss of profits.

We cannot determine from the record that defendant was in anywise prejudiced by the instruction even though the evidence may not have supported an award for profits.

Finding no reversible error in the record, the judgment is affirmed.

ME. JUSTICES METCALF, BOTTOMLY, and FREEBOURN, concur.