Bradley v. Fowler

• Decision Date: 07 April 1947
• Docket Number: 15934.
• Parties: BRADLEY v. FOWLER.
• Court: South Carolina Supreme Court

42 S.E.2d 234

210 S.C. 231

BRADLEY v. FOWLER.

No. 15934.

Supreme Court of South Carolina

April 7, 1947

Whiteside & Taylor and Osborne, Butler &amp Moore, all of Spartanburg, for appellant.

R. A. Hannon and Sam R. Watt, both of Spartanburg for respondent.

FISHBURNE Justice.

This appeal brings under review the proceedings in the trial of a tort action, in which the plaintiff was awarded a verdict and judgment in the sum of $10,000, actual damages. The action was brought against the defendant to recover damages for injuries resulting from an explosion of gasoline which, it is alleged, was purchased as kerosene for domestic use.

The first ground of appeal is that the trial court committed error in refusing appellant's motion for a directed verdict based on the ground that the evidence failed to show actionable negligence on the part of appellant which operated as a proximate cause of respondent's injuries.

The circumstances leading up to the tragic occurrence which gave rise to this lawsuit may be thus stated:

The oil in question, purporting to be five gallons of kerosene, was purchased shortly before midnight on Saturday, January 27 1945, by William Bradley, the brother of respondent, from Tillman Fowler, the appellant, who operated a country store and filling station on the Boiling Springs Road just outside of the city limits of Spartanburg. Bradley, who lived several miles from Spartanburg, accompanied by his brother-in-law, Charlie Mathis, drove to the grocery store in a truck to buy some kerosene and some groceries. Upon arriving at the store he placed his empty five gallon kerosene can on the ground on the outside of the store, between the gasoline tank and the kerosene oil tank, then went into the store and gave his order for the groceries and five gallons of kerosene to appellant who personally waited upon him. After paying appellant for the groceries and the kerosene (for the latter he gave a ration stamp), he went outside and found the can filled and in approximately the same place he had left it before entering the store.

Appellant had two clerks: one of them usually handled the meat counter in the rear of the store, and the other attended to gasoline and kerosene customers. It may be inferred that it was the latter who filled Bradley's order for kerosene, although he was not called as a witness. Upon reaching his home, which was a two room shack of board construction (one room of which was in such a state of disrepair that it could not be used), Bradley placed the kerosene can by his kerosene stove in the back of the habitable room in its customary place, where it remained unused until the following Monday morning, when the tragedy giving rise to this controversy occurred. On Sunday, January 28th, William Bradley, who lived in this house with his wife and child, was visited by his two brothers, Earl and Robert, who arrived in their car from Knoxville, Tennessee. The Bradley family also had other visiting relatives. There was only one bed in this one room house. On Sunday night the bed was occupied by two women and two children. The three Bradley brothers and their brother-in-law, Charlie Mathis, slept on pallets on the floor.

Earl Bradley and the respondent, Robert E. Bradley, planned to return to Knoxville the following day, and they arose about 6 o'clock Monday morning. Robert went out into the yard to inspect and check his automobile, while Earl undertook to kindle a fire in a basket grate in the open fireplace. The dimensions of the grate were given as six inches by six inches. He placed some kindling and coal in the grate, got the kerosene oil can, purportedly containing kerosene, and poured some of the fluid on one end of the kindling. A lighted match was applied and it blazed 'just enough to get it started, not much.' Just about this time Robert, the respondent, entered the room from the yard, leaving the door open, and approached the fire-place to obtain a light for his cigarette. Earl Bradley again lifted the can, which was the usual type with a spout, for the purpose of pouring some of the contents on the other end of the kindling, but before he could get the spout closer than twelve or fourteen inches to the grate, where the small flame had been kindled, the fumes ignited, the kerosene can exploded, and the contents scattered all over the room. In a very few minutes the house and its contents, as well as the automobile parked in the yard, were destroyed by fire. Earl Bradley was burned so badly that he died within two weeks. The respondent's left leg and left hand were so severely burned that he had to be hospitalized for several weeks, and the leg had to be amputated near the hip. The other occupants of the room escaped with relatively minor injuries.

The odor of gasoline was detected immediately following the explosion. William Bradley, Charlie Mathis, and the respondent testified that they were familiar with kerosene and gasoline, and that the odor of gasoline following the explosion pervaded the room, and that this was the first indication they had that appellant had filled the can with gasoline instead of kerosene.

The day following the explosion, William Bradley returned to appellant's store with two other men, and purchased a gallon of kerosene for testing purposes. While there he informed appellant of the accident, and appellant said, 'My attendant must have undoubtedly put gasoline in your can instead, because kerosene would not blow up like that.' Appellant while testifying on his own behalf, denied making this statement.

Bradley and the witness, Shipman, left the store, took the gallon jug of kerosene and proceeded to make a test to see if it would explode. They stood on the side of the road and poured some of the kerosene on the ground and applied a match, with no result. Then they gathered some sticks upon which they poured kerosene and ignited them. With this fire burning, they poured kerosene in a circle around the fire, and no explosion took place.

Respondent testified that at the time of the explosion he was standing right by his brother Earl who was undertaking to kindle the fire, and when asked 'What happened to you?' he replied, 'It filled my shoe full of it (the liquid) and the blaze went up my pants leg, and I ran up in the field in front of Abernathy's house and to turn the blaze out of my face I turned my feet up.' He further said that the liquid smelled like gasoline and repeated that his shoe was filled with it.

Appellant contends that the evidence undisputedly shows that the explosion would have occurred if the can had contained kerosene instead of gasoline, and that therefore a verdict should have been directed regardless of whether the appellant negligently filled the can with gasoline instead of kerosene. And the argument is emphasized that the testimony of the occupants of the house is incredible that they detected the odor of gasoline following the explosion under such sudden and devastating circumstances. We do not think this position is tenable. It is a matter of common knowledge that gasoline can be distinguished from kerosene through the sense of smell. Certainly no one testified to the contrary. This testimony, with the other evidence in the case, presented a jury issue.

It may reasonably be inferred from the mode and manner of the explosion, and under all of the evidence, that the can contained gasoline instead of kerosene. The evidence showed, and it is a matter of general knowledge, that gasoline is highly volatile and gives off fumes and vapors which readily ignite when in the proximity of a flame, and at lower temperature or flash point than kerosene, and hence is more inflammable and explosive than is kerosene.

But the appellant argues that the evidence shows that both kerosene and gasoline would have produced the same result that the act of Earl Bradley, respondent's brother, who undertook to kindle the fire, was an independent intervening cause; and that appellant's original negligence, if it existed, was not the proximate cause of respondent's injuries. It is said that under the circumstances presented, Earl was guilty of negligence in handling the can and its contents in the manner and under the conditions shown, and that this act was the act of an independent responsible human agency which intervened between the original negligence as the proximate cause; and that therefore, appellant's negligence merely brought about a condition of affairs, or a situation under which another and entirely independent and efficient...