Burt v. Blackfoot Motor Supply Co., Inc., 7379

• Decision Date: 14 November 1947
• Docket Number: 7379
• Citation: 186 P.2d 498,67 Idaho 548
• Parties: BURT v. BLACKFOOT MOTOR SUPPLY CO., Inc., et al
• Court: Idaho Supreme Court

186 P.2d 498

67 Idaho 548

BURT v. BLACKFOOT MOTOR SUPPLY CO., Inc., et al

No. 7379

Supreme Court of Idaho

November 14, 1947

Appeal from District Court, Sixth Judicial District; Bingham County Guy Stevens, Judge.

Reversed and remanded with directions.

Donald R. Good, of Blackfoot, for appellant.

The doctrine of res ipsa loquitur is applicable and may be invoked even though plaintiff specifically pleads the acts of negligence and does not allege negligence generally. O'Connor v. Menne, 169 Cal. 217, 146 P. 674; Lippert v. Pacific Sugar Co., 33 Cal.App. 198, 164 P. 810; Soto v. Spring Valley Water Co., 39 Cal.App 187, 178 P. 305; Atkinson v. United Railroads of San Francisco, 71 Cal.App. 82, 234 P. 863; Pontecorvo v Clark, 95 Cal.App. 162, 272 P. 591; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40; Chauvin v. Krupin, 4 Cal.App.2d 322, 40 P.2d 904.

"The Res Ipsa Loquitur doctrine creates an inference or presumption of negligence that has the legal effect of establishing a prima facie case." Dierman v. Providence Hospital, Cal.App., 179 P.2d 603 and cases therein cited.

Zener & Peterson, of Pocatello, for respondents.

The court did not err in granting the non-suit and holding that the plaintiff was not entitled to any benefit of the doctrine of res ipsa loquitur for the reason that no place in the complaint were there any allegations charging negligence generally.

Where a plaintiff pleads specific acts of negligence and does not plead negligence generally he may not in aid of his proof rely upon the doctrine of res ipsa loquitur. Leet v. Union Pacific Railroad Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008.

Where a plaintiff in his complaint alleges negligence generally and likewise alleges specific acts of negligence, he is not entitled to the doctrine of res ipsa loquitur in aid of his proof. Roselip et al. v. Raisch, 73 Cal.App.2d 125, 166 P.2d 340; Harvey v. Borg et al., 218 Iowa 1228, 257 N.W. 190; Orr v. Des Moines Electric Light Co., 207 Iowa 1149, 222 N.W. 560; Hanna v. Central States Electric Co., 210 Iowa 864, 232 N.W. 421.

Budge, Chief Justice. Givens, Holden, Miller and Hyatt, JJ., concur.

OPINION

Budge, Chief Justice.

September 12, 1945, appellant was the owner of a 1942 model Nash sedan, and on that date became involved in an accident sustaining damage to said car. In order to move the car after the accident it was necessary to secure a wrecker to convey the automobile to a garage where the necessary repairs could be made. September 13, 1945, appellant made arrangements with the Blackfoot Motor Supply Company to have the automobile towed to the company's garage. The car was taken into the possession of the company September 13th, and placed in the interior of its garage for storage awaiting the procurement of the repair parts, and remained in the garage from said date until October 29th when it was totally destroyed by fire which occurred in the garage.

The company owned and operated a tank truck containing compartments in which gasoline was stored, and each compartment was fitted with a valve at the bottom thereof to permit drainage. The tank was brought into the garage by one of the employees of the company on October 29th. Respondent Cahoon, employed by the company as a mechanic, was directed to work on the tank for the purpose of repairing a defective drainage valve. For that purpose he secured a lighted electric light globe attached to an extension cord and hung it over the door of the metal box housing the drainage valve on the lower side of the tank truck. When the defective drainage valve was opened by Cahoon about two quarts or more of gasoline in the undrained compartment of the tank "busted loose and come out" and spread over the floor and immediately became ignited, resulting in the destruction of the entire garage building and appellant's automobile stored therein.

Appellant alleged specific acts of negligence upon which he relied for recovery. Respondents, in their answer, denied negligence. Upon the issues thus joined a jury was duly impaneled to try the cause. After submission of evidence on behalf of appellant, except as to value of the car, respondents moved the court for a directed verdict and also made a motion for nonsuit. Thereafter, and before the court ruled upon the motions, counsel for respective parties stipulated that the jury be discharged and the matter submitted to the court for determination. Whereupon the cause was reopened and evidence introduced to establish the value of the car. At the conclusion of all appellant's testimony the motion for nonsuit was renewed. Thereafter the court sustained respondents' motion for nonsuit and dismissed the action, from which judgment and order of nonsuit and dismissal this appeal was taken.

It is shown by the testimony of Cahoon that the tank truck was brought into the garage the morning of the 29th; after tuning up the motor of the truck he started to work on the valves of the tank; that Tom Smith, Jr., or respondent Kaiser, or both of them, reported to him that the tank had been drained before it was brought into the garage; that when he opened one of the valves two quarts of gasoline "busted loose and came out" and spread over the floor.

Fred Vogt, Chief of the Fire Department of the City of Blackfoot, testified, on cross-examination:

"Q. When you walked in the garage you saw him [Cahoon] there? A. Yes, I saw Mr. Cahoon there.

"Q. What did you say to him at that time? A. Asked what he knew about the origin of the fire.

"Q. What did he say? * * * A. Said Mr. Kaiser and I were working on the valves in this tanker, and I asked him what they were doing, and he said dismantling the valves, and had dismantled the first one and when went to dismantle the second one the gas gushed out there at that time and in some manner the light globe at the end of the extension cord which was lighting this compartment was broken and that started the fire."

It is conceded that Cahoon had a light globe hanging there at the time of the explosion, but he denied that it broke as a result of the gasoline coming in contact with it, which would be a question of fact for the jury. There was sufficient evidence to submit to the jury, from which it would become their duty to determine the cause of the fire, and whether or not it started in the manner as alleged in plaintiff's amended complaint. Whether or not said fire was caused due to the negligence of respondents, with the resultant damage to plaintiff's property, were questions of fact for the jury.

The motion for nonsuit in the instant case falls under sec. 7-705, subd. 5, I.C.A., which is:

"An action may be dismissed, or a judgment of nonsuit entered, in the following cases: * * *

"5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case to entitle him to verdict or judgment."

As was said in Hill v. Bice, 65 Idaho 167, 175, 139 P.2d 1010, 1014:

"The rule is well settled in this jurisdiction that '* * * trial courts should act cautiously and should carefully scrutinize all the evidence before granting a motion for nonsuit. * * * On a motion by defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. * * *

"'"It is a well-settled rule of this court that on a motion by the defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant is deemed to have admitted all of the facts of which there is any evidence, and all of the facts which the evidence tends to prove, and that the evidence must be interpreted most strongly against the defendant." * * *

"'A plaintiff should not be nonsuited unless it appears that the evidence in his behalf, upon the most favorable construction the jury would be at liberty to give it, would not warrant a verdict for him.' Miller v. Gooding Highway Dist., supra [55 Idaho 258, 41 P.2d 625] and cases therein cited.

"It is reversible error for the trial court to grant a nonsuit where the plaintiff has made out a prima facie case. Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Kroetch v. Empire Mill Co., 9 Idaho 277, ...