Campbell v. Pure Oil Co.

• Decision Date: 12 November 1937
• Citation: 194 A. 873
• Parties: CAMPBELL et al. v. PURE OIL CO.
• Court: New Jersey Supreme Court

194 A. 873

CAMPBELL et al.

v. PURE OIL CO.

Supreme Court of New Jersey, Atlantic County.

November 12, 1937.

Action by Frederick Campbell and others against the Pure Oil Company. On motion to strike the complaint.

Motion denied.

Garrison & Weaver and John A. Miller, all of Atlantic City, for plaintiffs. Bolte & Miller, of Atlantic City, for defendant.

JAYNE, Supreme Court Commissioner.

This motion is addressed to the complaint. The reason assigned in support of the motion is that the complaint fails to allege a cause of action. In the consideration of a motion of this nature all of the facts adequately alleged in the complaint must be accepted as true, as well as all inferences of fact which can be logically and legitimately drawn from them. Crawford v. Winterbottom, 88 N.J.L. 588, 96 A. 497; Koewing v. West Orange, 89 N.J.L. 539, 99 A. 203. Such a motion under modern practice (Supreme Court rule 40) has merely been substituted for the general demurrer at common law. Savage v. Public Service Railway Co., 95 N.J.L. 432, 113 A. 252.

Concisely stated, the complaint alleges that on July 16, 1937, and for a long time prior thereto, the defendant maintained at the southeast corner of Virginia and Drexel avenues in the city of Atlantic City certain gas and oil tanks, pumps, pipes, and other apparatus for the storage of gasoline, kerosene, and lubricating oils. On the date mentioned a fire originated in and about the pumping plant on the premises of the defendant. The plaintiffs were firemen and were summoned to extinguish the fire or to arrest its progress. While the plaintiffs were endeavoring to protect adjacent properties from damage, a sudden and unexpected explosion occurred which caused them bodily injury. It is alleged that the defendant had negligently permitted large quantities of oily, greasy, and gaseous substances of a highly inflammable and combustible nature to accumulate on the premises in the vicinity of its pump house and tanks and had permitted its tanks and storage containers to become out of repair so that the contents could escape from them. Additionally it is alleged that the storage tanks were not encircled by an embankment or dike and were not equipped with fire protecting and safety devices as required by an existing ordinance of the city. It is averred that the plaintiffs were wholly unaware that oily and gaseous substances had been permitted to saturate the premises in the vicinity of the pump house and tanks, and were ignorant of the defective condition of the storage tanks and of the failure of the defendant to equip them with the required devices. It is to be inferred that these conditions which were unknown to the plaintiffs proximately occasioned the unanticipated explosion. The present motion can therefore be considered in the light of these recited facts.

The complaint also embodies a general allegation that the explosion and resultant injury to the plaintiffs were proximately caused by the negligence of the defendant. Incidentally it may be aptly stated that at the common law a general allegation of negligence in the declaration was sufficient as against a general demurrer. Van Horn v. Central Railroad Co., 38 N.J.L. 133, 140; Breese v. Trenton Horse R. R. Co., 52 N.J.L. 250, 253, 19 A. 204; Race v. Easton & Amboy Railroad Co., 62 N.J.L. 536, 539, 41 A. 710; Minnuci v. Philadelphia & Reading Railroad Co., 68 N.J.L. 432, 434, 53 A. 229; Savage v. Public Service Railway Co., supra; De Voe v. Delaware, L. & W. R. R. Co., 112 N.J.L. 35, 169 A. 637.

At the argument of this motion counsel for the defendant particularly emphasized the contention that the only duty owed by the landowner to a fireman who in the pursuit of his duty enters the premises to abate a fire is to abstain from acts willfully and wantonly injurious to the fireman. This subject received judicial consideration in the following cases: Smith v. Twin State Gas & Electric Co., 83 N.H. 439, 144 A. 57, 783, 61 A.L.R. 1015; Clark v. Boston & M. R. R, 78 N.H. 428, 101 A 795, L.R.A.1918A, 518; Lamb v. Sebach, 52 Ohio App. 362, 3 N.E.(2d) 686; Maloney v. Hearst Hotels Corporation, 274 N.Y. 106, 8 N.E.(2d) 296; Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633; Pinson v. Young, 100 Kan. 452, 164 P. 1102, L.R.A.1917F, 621; Houston Belt & Terminal Ry. Co. v. O'Leary (Tex. Civ.App.) 136 S.W. 601, 602; Rathbun v. White, 157 Cal. 248, 107 P. 309; Aldworth v. F. W. Woolworth Co. (Mass.) 3 N.E. (2d) 1008, and cases therein cited.

The factual circumstances alleged in the present complaint do not project for decision the question relating to the legal status of the plaintiffs upon the mere assumption that they were upon the premises of the defendant. But see Barnett v. Atlantic City Electric Co., 87 N.J.L. 29, 31, 93 A. 108. There is no allegation that the plaintiffs were on the property of the defendant when injured. The averment is that they were engaged in protecting adjacent properties. It was stated by counsel at the argument that the evidence to be submitted under the complaint would disclose that the plaintiffs, when injured, were on the public street. Therefore it is essential to here recognize the distinction between the more usual case of negligence in which the basic duty involved is the duty to abstain from acts of commission or omission which may be reasonably expected to wrongfully cause injury to another and the case in which a positive duty created by law or the situation of the parties is alleged to have been ignored.

It is elementary that one who utilizes one's property for the storage of relatively large quantities of highly inflammable or explosive substances or materials must exercise a degree of care commensurate with the risks and dangers to be reasonably anticipated in such an undertaking. This basic duty must be observed for the safety of others. The complaint alleges a failure on the part of the defendant company to observe this duty. Gilroy v. Standard Oil Co., 107...