Brown v. National Oil Co.

• Citation: 105 S.E.2d 81,233 S.C. 345
• Decision Date: 05 August 1958
• Docket Number: No. 17458,17458
• Parties: Mrs. Blanche C. BROWN, Administratrix of the Estate of James C. Brown, Deceased, Appellant, v. NATIONAL OIL COMPANY, a Corporation, and Herbert Taylor, Respondents.
• Court: United States State Supreme Court of South Carolina

Page 81

105 S.E.2d 81

233 S.C. 345

Mrs. Blanche C. BROWN, Administratrix of the Estate of James C. Brown, Deceased, Appellant, v. NATIONAL OIL COMPANY, a Corporation, and Herbert Taylor, Respondents.

No. 17458.

Supreme Court of South Carolina.

Aug. 5, 1958.

Odom, Bostick & Nolen, Spartanburg, for appellant.

Carlisle, Brown & Carlisle, Spartanburg, for respondents.

OXNER, Justice.

This action was brought in February, 1955, by James C. Brown against National Oil Company and Herbert Taylor, one of its tank truck drivers and salesmen, to recover damages resulting from a fire alleged to have been caused by the negligence of the defendants. Brown died on April 24, 1955. Thereafter his widow, Mrs. Blanche C. Brown, was appointed administratrix of his estate and an appropriate order entered substituting her as party plaintiff. The case was tried in January, 1956. Timely motions by defendants for a nonsuit and a directed verdict were refused. The jury returned a verdict in favor of the plaintiff against defendant National Oil Company alone for $15,000 actual damages, thereby absolving the defendant Herbert Taylor. (The trial Judge held that there was no evidence to support a verdict for punitive damages.) Thereafter the Court granted a motion by the National Oil Company for judgment non obstante veredicto upon the ground that there was no evidence of negligence on the part of the National Oil Company apart from that of defendant Taylor. From this order, plaintiff has appealed.

It is well settled that where a principal and agent or master and servant are jointly sued and the only evidence of negligence relates to acts committed by the agent or servant and the verdict of the jury exonerates the latter, a verdict against the principal or master alone cannot stand. Chapman-Storm Lumber Corp. v. Minnesota-South Carolina Land & Timber Co., 183 S.C. 31, 190 S.E. 117; Carter v. Atlantic Coast Line Railroad Co., 194 S.C. 494, 10 S.E.2d 17; LeGette v. Carolina Butane Gas Co., 210 S.C. 542, 43 S.E.2d 472. The question presented, therefore, is whether there is any evidence of actionable negligence in this case apart from that alleged to have been committed by Taylor. If so, there was error in granting the motion.

On the morning of August 3, 1954, a combination filling station and country store operated by plaintiff's intestate was destroyed by fire. This business was located at Pauline, a small community about ten miles south of Spartanburg on S. C. Highway No. 56. Plaintiff and his family lived in the rear of the store. The property was owned by one W. G. Smith who leased it to the National Oil Company. In 1945 the Oil Company sublet the premises, including the gasoline tanks and equipment, to plaintiff's intestate. The service station equipment was kept in repair by the Oil Company. The pumps were mounted on a concrete 'island' in front of the store. They consisted of two electrically operated gasoline pumps, one for high test and the other for regular gas, a hand pump for high test gas, referred to as a 'visible pump', and an electrically operated kerosene pump. The visible pump had a round glass container at the top with a capacity of ten gallons and was only used when the electric current was off. There was a concrete apron between the pumps and the front door of the store ample in width to permit a motor vehicle to be driven thereon. A roof or shed extending from the store building furnished shelter for the apron and the gasoline equipment on the island.

All gasoline used at this service station was purchased from the Oil Company. Deliveries were made about twice a week. Around 11:00 A. M., on August 3, 1954, a clear, hot day, defendant Herbert Taylor drove one of the Oil Company's tank trucks under the shed to deliver gasoline. When he had filled the underground tank holding regular gasoline, the truck was moved a short distance in order to fill the high test underground tank. After connecting the hose with the 'filler pipe' and opening the valve to let the gas in, Taylor sat down in a chair about 12 feet from the filler pipe and commenced making out his tickets. An employee of plaintiff's intestate, Francis Johnson, was on top of the truck checking the gasoline delivery. A son, Jimmy Brown, was standing near the back of the truck. Alfred West, a bystander, who was an occasional customer and a frequent visitor at the store, was sitting on the concrete island about three or four feet from the filler pipe with his back against the visible pump. James C. Brown and his wife were inside the store. While the gasoline was flowing into the high test tank, West struck a match to light a cigarette. Taylor undertook to stop him but it was too late. This ignited gasoline fumes or vapor concentrated under the shed. There was immediately, according to Taylor, 'a big flash', 'all the fumes in the air they flashed'. All those in front of the store ran. The fire soon settled around the filler pipe. Taylor returned and got a fire extinguisher from the truck for the purpose of extinguishing this blaze. He says he told the others to 'leave it alone and I will put it out.' According to plaintiff's testimony, Taylor was not able to operate the fire extinguisher. Plaintiff's intestate, who had run out of the store when someone hollered 'fire', then took it and was also unsuccessful in getting it to work. About this time West pulled the hose from the filler pipe with the gasoline flowing. This resulted in a general fire all over the front of the place. In the excitement West got in the truck and with the gasoline flowing drove it off the premises and stopped in a nearby field. Several persons working at a place of business located nearby then came over with fire extinguishers, but it was too late to do anything with the fire. All the contents of the store were destroyed.

We shall now discuss the evidence relating to negligence. The record clearly discloses negligence on the part of Taylor in failing to stand at the rear of the truck so as to enable him to cut off the gasoline in an emergency. But this evidence must be disregarded in view of the fact that the jury found in his favor. The verdict against National Oil alone can be sustained only if there is evidence of negligence apart from any act of Taylor. Plaintiff relies on several specifications of negligence in the complaint directed solely to the Oil Company, but the only one we need to consider is the allegation of negligence 'in failing to have the underground tank vented, or in having same improperly vented.'

The expert witnesses for the plaintiff testified that it was extremely hazardous to operate a filling station which had no vent--a pipe attached to the underground tank for the escape of air and gasoline fumes. They said without this means of escape fumes will concentrate around the filler pipe when gasoline is poured into the underground tank, and that without a vent there is also the likelihood of a 'blowback'. Their testimony was further to the effect that these vent pipes should be placed on the back or side of the building away from traffic and from doors and windows and should extend at least ten feet above the ground so as to eliminate the risk of being ignited. Unless so placed there is considerable danger of ignition in areas frequented by the public.

Several witnesses for plaintiff testified there were no vents at this filling station. The Oil Company contends that the pipe on the visible pump through which surplus gasoline was returned to the underground tank functioned as a vent pipe and that there was also a hole in the top of the glass receptacle which allowed the escape of air and gasoline fumes, but one of the expert witnesses testified that neither of these was sufficient as a vent. One of the Oil Company's employees testified that about six months before the fire, he was instructed by his superior officer to install two electric gasoline pumps at this station and to 'go down in there where that valve comes out on that visible pump and put a practical vent in there like was supposed to be in there.' This is a clear recognition of the inadequacy of the vents at this filling station. It is also of interest to note that when new pumps were installed after the fire, the service station was equipped with vents in accordance with the standard which plaintiff's witnesses testified was essential to safety in the operation of a filling station.

It is argued that neither the lack of vents nor improper vents caused the concentration of fumes under the shed. Counsel for the Oil Company call attention to the fact that although there had previously been numerous instances of 'blowbacks' when filling the underground tanks, there is no evidence of a 'blowback' occurring on the morning of the fire. They further point out that according to the experts some fumes escape around the filler pipe even if there are proper vents. But we think it could be reasonably inferred from the testimony that if proper vents have been installed, there would not have been an appreciable amount of fumes on the morning of the fire. The experts said that only a negligible amount escapes around the filler pipe when there are proper vents. The fact that there was a 'big' flash causing everyone to run indicates that there was a rather heavy concentration of fumes under the shed.

We conclude that the jury could have reasonably found negligence on the part of the Oil Company in failing to provide adequate vents thereby causing a heavy concentration of gas fumes under the shed of this service station. The next question is whether it can be reasonably inferred that such negligence was a proximate cause of the fire. The contention of the Oil Company is that the striking of the match by West was an intervening cause and that the chain of causation was further broken by his act in pulling the nozzle of the hose from the filler pipe, thereby converting, according to the Oil Company, a small...