Bunn v. Standard Oil Co., 49791
| Decision Date | 17 November 1959 |
| Docket Number | No. 49791,49791 |
| Citation | 99 N.W.2d 436,251 Iowa 7 |
| Parties | Valentine H. BUNN, Appellant, v. STANDARD OIL COMPANY, Richard McGonigle, d/b/a McGonigle's Standard Service and Shirley Parks, Appellees. |
| Court | Iowa Supreme Court |
Guthrie & Blackburn, Webster City, for appellant.
Breese & Cornwell, Mason City, for appellee Standard Oil Company.
Erwin L. Buck, Britt, for appellee Richard McGonigle.
Plaintiff brings this action for damages in five divisions. Divisions II and IV were stricken by the trial court and trial was had on Division I, III and V. In each division plaintiff alleges the gasoline tanks in the Standard Oil Company station leaked causing gasoline or other petroleum products to be disseminated into the earth in such a manner as to cause poisonous, toxic and obnoxious gases and fumes to travel through an underground sewer and into the residence house of plaintiff. In Division I plaintiff alleges specific acts of negligence, in Division III plaintiff relies on res ipsa loquitur, and in Division V plaintiff alleges the acts of the defendants Standard Oil Co. and McGonigle, the station operator, (the case was dismissed as to the landowner, Shirley Parks, by plaintiff before trial) created a nuisance on the property occupied by plaintiff. At the close of plaintiff's evidence both defendants moved for a directed verdict on the grounds of insufficiency of the evidence to show negligence, proximate cause, freedom from contributory negligence, to show the source of the fumes complained of was the service station, and the statute of limitations as to the negligence division; the same grounds and lack of exclusive control as to the negligence division based on res ipsa loquitur; and as to the nuisance division that the evidence failed to show the source of the fumes was defendants' station and there was no evidence connecting the station as the source of the fumes which entered the plaintiff's house by way of the sewer, and that plaintiff was not the real party in interest. The trial court sustained the motion and his findings indicate he considered all grounds urged except as to plaintiff being the real party in interest and the statute of limitations. We agree that the motion was properly sustained.
Whether we consider this case on the basis of negligence or nuisance the first fundamental fact to be proved is that the act or failure to act of defendants produced the result or damage of which plaintiff complains. Fanelli v. Illinois Central R. Co., 246 Iowa 661, 69 N.W.2d 13; 39 Am.Jur. Nuisance, section 17, page 299; and 66 C.J.S. Nuisances § 8b, p. 743. Of course we are required to review the evidence on a motion to direct in the light most favorable to plaintiff and to give him the benefit of every reasonable inference therefrom. Plaintiff's home was across Central Avenue from defendants' gas station in Clarion. The house is on the north side of the avenue and a half a lot east of the station. The evidence shows plaintiff suffered damage from raw gasoline fumes coming into his house through the basement drain. Plaintiff alleged, '* * * to cause poisonous, toxic and noxious gases and fumes to travel through an underground sewer and into the residence house of the plaintiff.' He does not contend nor does the evidence show the fumes came in in any other place. Plaintiff testified the basement drain ran into the storm sewer. A workman who placed a vent for plaintiff to help eliminate the odor and fumes says he tapped into the sanitary sewer. The present storm sewer was put in in 1916, the courthouse tile in about 1897 or 1898. The date the sanitary sewer was put in is not shown. It was in the middle of the street, the other two were in the north side. The courthouse tile was about six feet deep, the storm sewer deeper. In 1908 the owners of the house then on the lot now occupied by the gas station ran a sewer tile to the courthouse tile. This sewer tile was six feet deep. The neighbor, a brother-in-law, testifying to these sewers did not know whether this drain from property occupied by the station was cut or not at the time the storm sewer and sanitary sewers were put in. The evidence does not show...
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...proved is that the act or failure to act of defendant produced the result or damage of which plaintiff complains." Bunn v. Standard Oil Co., 251 Iowa 7, 99 N.W.2d 436 (1959); 66 C.J.S. Nuisances ? 8 b; Fanelli v. Illinois Central R. Co., 246 Iowa 661, 69 N.W.2d 13 (1955) and citations conta......
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