Schnabel v. Mormann, X-268

• Decision Date: 05 November 1975
• Docket Number: No. X-268,X-268
• Citation: 324 So.2d 197
• Parties: Betty Jean SCHNABEL and Insurance Company of North America, a corporation, Appellants, v. Dorothy MORMANN and Willard Mormann, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 197

324 So.2d 197

Betty Jean SCHNABEL and Insurance Company of North America, a corporation, Appellants, v. Dorothy MORMANN and Willard Mormann, her husband, Appellees.

No. X-268.

District Court of Appeal of Florida, First District.

Nov. 5, 1975.

Rehearing Denied Jan. 16, 1976.

Green, Strasser & Hammond, Daytona Beach, for appellants.

Wesley A. Fink, Fink & Loucks, Daytona Beach, for appellees.

BOYER, Chief Judge.

Appellants, defendants below, appeal from an award of damages to appellees in the trial court. Specifically, appellants assert that the trial court erred in denying their motion for a directed verdict and in giving an instruction to the jury on res ipsa loquitur.

Although the case involved several parties, the primary participants in the drama giving rise to the lawsuit are appellants Betty Jean Schnabel (Mrs. Schnabel) and her mother, appellee Dorothy Mormann (Mrs. Mormann). In April of 1961, Mrs. Schnabel purchased a 196s Buick. After using the car for approximately ten years, Mrs. Schnabel noticed that the car was leaking gasoline, which she immediately had repaired in July of 1971. From this time until the date of the accident, Mrs. Schnabel professed to have no knowledge that her car was leaking gasoline. From December, 1971, until the time of the accident, the car, when not being used, was kept in Mrs. Schnabel's garage in Ormond Beach and was driven almost daily by Mrs. Schnabel until Mrs. Mormann arrived on July 17, 1972. From July 17 until July 26 (the day of the accident), the car was parked in the garage and was not used. Neither Mrs. Schnabel nor Mrs. Mormann went into the garage after Mrs. Mormann arrived until the date of the accident. On July 21, Mrs. Schnabel went out of town, leaving her mother to take care of the house. In the early evening of July 26, Mrs. Mormann entered the garage for the purpose of using the washing machine. After turning on the machine and walking into the section of the garage where the car was kept, there was an explosion. Mrs. Mormann received severe burns from the explosion and resulting fire.

At trial, Officer Bushid, a Public Safety Officer with the City of Ormond Beach, testified that on the day of the accident he received a call concerning the fire and went immediately to the scene. Upon arrival, he found that the garage door was partially opened, and that a man who was attempting to put the fire out had backed the car out a foot or two. His investigation revealed that the gas line in the 1961 Buick that led from the gas tank to the fuel pump had been leaking at a fast rate. He stated that there were at least four overlapping gasoline stains with tire marks through them on the garage floor. There was one fresh stain which covered approximately three-fourths of the garage floor. He detected the smell of gasoline within the garage and noted several electrical devices in the garage which might have produced a spark sufficient to ignite the fumes that were there. In response to a hypothetical question, Officer Bushid testified that the gasoline leaking from Mrs. Schnabel's automobile was ignited by a spark from the washing machine.

We turn first to appellants' objection to the res ipsa loquitur instruction. Inasmuch as it appears from the record that an objection to this instruction was not timely raised, we are unable to explore the merits of this point on appeal. (See Coleman v. Allen, Fla.App. 1st, 1975, 320 So.2d 864.

Appellants further urge as error the trial court's denial of their motion for directed verdict. They claim that the motion should have been granted where no evidence was adduced at trial from which a jury could have lawfully found that Mrs. Schnabel knew, or in the exercise of reasonable care should have known, that the gas line...